Ford v. Rock Island Ry. Co.Ford v. Rock Island Ry. Co.
This disposes of the questions raised in the briefs.
The judgment is reversed and the cause remanded to be proceeded with in a manner not inconsistent with this opinion. All concur.
PATRICK H. FORD v. JACOB M. DICKINSON, Receiver of CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, and ISMERT-HINCKE MILLING COMPANY, Appellants.
Division One, December 20, 1919.
- NEGLIGENCE: Railway Track: Dangerous Proximity to Posts. The mere construction of a railroad track so close to an iron post as to be inherently dangerous to a brakeman riding on the side of a box car is not, regardless of conditions, negligence. It is error to instruct the jury that the construction of an iron post, to support the roof of a shed, used by a milling company in unloading wheat from cars, in such close proximity to the railroad track as to be dangerous to a brakeman on the side of the car, of itself alone constitutes negligence, there being no showing of sufficient ground under the shed for wider space between the post and track or that it was practicable or feasible for the milling company to have allowed wider space.
- ——: Defective Track and Dangerous Proximity to Post: Inconsistent Allegations: Concurrent Acts. A petition is inconsistent which alleges that the location of an iron post to support a shed, used for unloading cars hauling wheat to a mill, so close to the railroad track that a brakeman could not ride safely on the side of the car, was the proximate cause of his injury, and which also alleges that the proximate cause of his injury was a low place under the rail which caused the car to swerve towards the post; and where both acts of negligence are submitted to the jury, by one instruction fixing liability on the milling company because of the dangerous proximity of the post to the rail, and by another fixing liability on the railroad company because of the defect in the rail, a verdict against both cannot stand. In such case the petition should either allege that the two acts of negligence were con-
current and operating together caused the injury, or they should be alleged, in the alternative, that one or the other caused the injury, and the instructions be drawn accordingly. - ——: Post Near Track: Assumption of Risks: Warning. A brakeman does not assume a risk of which he is totally ignorant and cannot ascertain in the exercise of ordinary care and prudence, and where such are the facts it is the duty of the company to warn him of the danger. Where the railroad track was so close to an iron post erected to support a shed, used by a milling company, as to be dangerous, the brakeman was not acquainted with the situation, and as the car approached he looked along the track and concluded it was safe for him to ride on the side of the car, it was the duty of the railroad company to warn him of the danger, the hazard being exceptional.
- ——: Proximity of Track to Post: Liability of Railroad. If a railroad track is negligently maintained dangerously near to an iron post in a milling shed, the railroad company which retains direction and control over it is liable for damages for injury to a brakeman riding on the side of a car; and it is negligently maintained, if it is practicable and feasible to maintain the track a sufficient distance from the post to remove the danger; and if the railroad company does not have sufficient control to eliminate the danger, it can either require the milling company to do so, or cease to haul cars into the shed.
- ——: ——: Liability of Milling Company: Latent Perils. A milling company which maintains a shed for unloading cars of wheat is liable for all latent or concealed perils, maintained by it, to brakemen handling the cars; if it maintains an iron post, erected to support the shed, so close to the railroad track as to be dangerous to brakemen riding on the ladder of passing cars, and the danger is not so open or obvious that a brakeman, by ordinary care in the discharge of his duties in the customary way, will discover it, it is liable for his injuries caused by coming in contact with the post as the car passes.
- ——: Interstate Employment: Misjoinder: Waivers. The petition charged both defendants, a railroad company and a milling company, with common-law liability, and the milling company contends that the cars of wheat which the plaintiff brakeman was engaged in switching at the time he was injured were interstate shipments, that by reason thereof he was in interstate commerce, and that the railroad company’s liability is governed by the Federal Employer’s Liability Act and its own by the common law, and that therefore there was a misjoinder of defendants and of causes of action. Held, that if the milling company had a right to raise the question, it waived it by pleading over without raising it. Besides, if the railroad company wished to waive its
immunity under the common law, it cannot be perceived how that affects the rights of the milling company. Held, also, that the railroad company, having failed to raise by some sort of pleading that its liability is governed by the Federal Employers’ Liability Act, cannot raise the question for the first time in the appellate court.
Appeal from Jackson Circuit Court.—Hon. O. A. Lucas, Judge.
REVERSED AND REMANDED.
Sebree & Sebree, for appellant Jacob M. Dickinson.
Adrian F. Sherman and Thad. B. Landon for appellant Ismert-Hincke Milling Company.
(1) The court erred in overruling the demurrer of the defendant milling company at the close of plaintiff’s evidence, and in refusing to peremptorily instruct the jury to return a verdict for said defendant. a. Under the pleadings and the evidence, the milling company was not guilty of negligence. Crawford v. Stockyards Co., 215 Mo. 410; Morris v. Pryor, 272 Mo. 350; Lewis v. Coal Co., 84 Kan. 333; Oplotnik v. Mining Co., 98 Kan. 356; Pankey v. A., T. & Santa Fe Ry. Co., 180 Mo. App. 185; South Side Elec. Ry. Co. v. Nesvig, 214 Ill. 463. (2) The evidence shows that the location of the post near the west rail of track 2 was in no way the proximate cause of plaintiff’s injury. A new and independent cause, to-wit, a sag in the west rail of track 2 at or near the post in question, intervened between the action of the milling company in locating the post, and the plaintiff’s injury. Kiser v. Suppe, 133 Mo. App. 19; Haley v. Transit Co., 179 Mo. 30; Dickson v. Ry. Co., 124 Mo. 140; Hudson v. Wabash Ry. Co., 101 Mo. 13; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256; Glenn v. Met. St. Ry. Co., 167 Mo. App. 109; Cole v. German Savings & Loan Society, 124 Fed. 113;
Boyle & Watson for respondent.
(1) The defendants, not having stood on their demurrers at the close of plaintiff’s case, and having introduced evidence in their own behalf, the final demurrers search all the testimony, and the plaintiff is entitled to any benefit to be derived from the defendant’s proof. Stauffer v. Metropolitan St. Ry. Co., 243 Mo. 305; Peters v. Lusk, 200 Mo. App. 372, l. c. 379. (2) Under the
RAGLAND, C.—This suit was instituted in the Circuit Court of Jackson County to recover damages for personal injuries received by the plaintiff, an employee of the defendant, Jacob M. Dickinson, Receiver of the Chicago, Rock Island & Pacific Railway Company, while engaged in switching cars in the yards of the defendant, Ismert-Hincke Milling Company, in Kansas City, Kansas.
The defendant Ismert-Hincke Milling Company, hereinafter referred to as the Milling Company, at and prior to the occurrences presently to be narrated, operated a large flour mill and elevator. Its plant was located in the neighborhood of the terminal and switching yards of the Chicago, Rock Island & Pacific Railway Company, hereinafter called the Railway Company, but its premises were enclosed. On the north side there was a gate, through which the Railway Company constructed a track from its yards south to the mill and elevator, for the purpose of delivering at the latter point cars loaded with wheat and receiving there cars loaded with the mill products. Connected (or to be connected) with this track there were three railroad tracks along the west side of the main structure of the mill and elevator. The one next to the mill was known as track 1, the one next west as track 2, and the remaining one as track 3. Over these three tracks there was a steel shed, open at the north and south ends to permit the passage of
The mill structures, including the shed and its supports, had been erected by the Milling Company and were under its exclusive control and supervision. The tracks had been constructed by the Railway Company, they were used by the defendant receiver in the service of the Milling Company only, but it was incumbent upon him to keep them in repair. The crew in charge of the engine that did the switching for the mills in the vicinity of the Railway Company’s yards made two trips daily into the yards of the Milling Company to deliver and receive the cars incident to the latter’s industry.
On March 2, 1916, plaintiff was working for the defendant receiver as a switchman. He was an experienced brakeman, but at that time was on the extra list, having no regular assignment. On that day he was directed to serve as one of the switching crew in charge of the mill engine. The crew consisted of a foreman, an engineer, a fireman and two switchmen. One of the switchmen was called the engine-man, it was his duty to be on or near the engine; the other was called the field-man, and it was his duty to be on or near the car furthest removed from the engine and to give the necessary signals to the engine-man who communicated them to the engineer. This crew on the day in question was directed to move a string of seven cars loaded with wheat from the railroad yards to the mill yards and place them on the unloading track. All of the members of the crew were familiar with the mill yard, the approaches to the mill and elevator and the imme-
Later on the same day the car on which plaintiff was riding when injured was placed on track 2 with the south end opposite the post that struck plaintiff and
Plaintiff at the time he was struck, in that he was riding on the side of the car, was, in that respect, in a position that was a usual and customary one for the proper discharge of his duties where there were no structures so close to the track as to make it hazardous, but members of the crew who were familiar with the mill shed and the locations of the posts never attempted to ride through, they always got off on approaching the shed, walked along and gave the necessary signals. None of them had ever seen a switchman attempt to ride on the side of a car as it was moving past these posts prior to plaintiff’s injury. There was some evidence tending to show a warning in general terms to the employees of the defendant receiver of the dangers arising from the proximity of structures to the tracks in the Railway Company’s terminal yards and in those of the industrial plants served by the defendant receiver, but plaintiff testified that he had never been warned as to the dangerous proximity of these specific mill posts to the track and that he had no knowledge thereof. In 1911 the plaintiff was in the employ of the Railway Company and, as a condition of his continuance in its service, he was required to sign, and he did sign, a new application for employment which contained the following:
The petition contains three specifications of negligence: (1) that the “post was located, maintained and permitted to remain at a place which was so close to the west side of said track on which said cars were being operated, that a switchman riding on the west side of a box car . . . could not clear said post and pass it without being struck;” (2) that defendants “suffered and permitted said track to fall into a state of disrepair in that the west rail was not resting on a firm and solid base or bed at the place of said accident; thereby causing the car upon which plaintiff was riding to sway westward toward said post as it passed said post and said post to strike plaintiff,” and (3) that defendants “failed to warn plaintiff that said post was dangerously near said track, as aforesaid, and failed to warn plaintiff of the dangerous condition of the track contiguous to said post, as aforesaid.”
The answer of the defendant receiver was a general denial, coupled with the pleas of contributory negligence and assumption of risk; the answer of the defendant Milling Company, in addition to a general denial and a plea of contributory negligence, pleaded a statute of the State of Kansas relating to the adoption of the common law in that state.
At the close of all the evidence each of the defendants requested the court to direct a verdict in his favor. This the court refused to do. At plaintiff’s instance the court told the jury, by instruction 1, that if they found “that said defendant, receiver, negligently suffered and permitted said track 2 to fall into a state of disrepair, if so, in that the west rail was not resting on a firm and solid base or bed at a point east of said south iron post, if so, and that by reason thereof the car upon which plaintiff was riding was caused to sway westward toward said post as it passed said post, if so, by reason thereof plaintiff was struck by said post and thrown from his position on said car, and that defendant receiver knew, or by the exercise of ordinary care could have known of said condition of said track, if you find it was in said condition, in time by the exercise of ordinary diligence to have repaired it and thereby avoided injuring plaintiff and negligently failed to do so, then your verdict will be for the plaintiff and against the defendant receiver, provided, however, in all events that you further find that the danger, if you find there was danger, of being struck by said post, was not one of the risks and hazards of the employment in which plaintiff was engaged, and of which he had knowledge or by the exercise of ordinary care could have had knowledge, and provided you further find that plaintiff at the time he
And further by instruction number 2: “And if you further find and believe from the evidence that the said south iron post was placed and maintained by the defendant, Ismert-Hincke Milling Company, at a place so close to the west side of said track 2 that a switchman riding on the west side of a box car being moved on said track 2 and past said post would not clear said post, and that defendant Ismert-Hincke Milling Company knew, or by the exercise of ordinary care could have known that box cars would be moved along said track 2 past said south iron post, and that in so moving cars it would be necessary for a switchman to be on the west side of a box car that might be moved along said track 2 past said south iron post, and that defendant Ismert-Hincke Milling Company knew, or by the exercise of ordinary care could have known, that said post was so close to the west side of said track 2 that a switchman riding on the west side of a box car being moved along said track 2 and past said south iron post would not clear said post in time by the exercise of ordinary diligence to have removed said post, but failed to do so, and if you also find, that plaintiff was struck by said post and thrown from his position, if you find he was, by reason of the fact that said south iron post was so close to said track that it would not clear a switchman riding on a car as aforesaid, if you find it was, and that the location of said post was the proximate cause of said injury, then your verdict will be for the plaintiff and against the defendant Ismert-Hincke Milling Company, provided you further find that at the time plaintiff was struck by said post, if you find he was struck, he was exercising ordinary care for his own safety.”
Instructions requested by defendants, given and refused, will be referred to hereafter.
The jury found against both defendants, assessing plaintiff’s damages at a substantial sum. From the
Appellant receiver assigns as error: (1) the failure of the trial court to sustain his demurrer to the evidence and (2) the giving of instruction number 1. The appellant Milling Company assigns as error: (1) the failure of the court to sustain its demurrer to the evidence, and (2) the giving of instruction number 2. As the cause will have to be remanded for another trial we will consider all questions raised by the respective demurrers, as well as the propriety of giving the instructions referred to.
Proximity of Track to Post.
I. If the court committed error in not directing a verdict for the defendant receiver, it is because (a) the evidence was not sufficient to take the case to the jury on any of the three specifications of negligence set out in the petition, or (b) the evidence as a whole shows that the plaintiff, as a matter of law, was guilty of contributory negligence barring a recovery, or (c) his injury was caused by a risk that he assumed as an incident to his employment, which would also in effect negative any negligence on the part of this defendant.
The first assignment of negligence is that the defendants negligently located and maintained the post so close to the track (or the track so close to the post) that a switchman riding on the side of a box car could not pass it without being struck. The evidence unquestionably shows such proximity of post and track and but little, if anything, more. Does such showing support the allegation of negligence? In other words, does the mere fact that the post was maintained so close to the track that a switchman riding on the side of a box car could not clear it, constitute negligence? There was no attempt on the part of the plaintiff to show, nor does it otherwise appear, that there was sufficient ground available to the Milling Company for the tracks under the shed to have been constructed further apart and
Whether in a given case such a dangerous structure is justified by the necessity of the situation is, on the attendant facts, sometimes a question for the court and at others for the jury. In Murphy v. Railroad, 115 Mo. 111-119, it is said that when a structure like a signal post or fence is placed so near to the track by a railroad company that one of its servants, when in the discharge of his duty, is struck and injured without fault on his part, the liability of the company is fixed. Additional proof is not necessary in such case. In Morris v. Pryor, supra, the negligence predicated as the basis of the action was the maintenance of a curved railroad track in its relation to the coal bin of an industrial plant. The
Defective Track.
II. The second ground of alleged negligence, the only one on which the case was submitted to the jury so far as the defendant receiver is concerned, was the defective condition of the track near the post which caused the cars in passing to sway toward it. The petition in a preceding paragraph alleges that the post was located, maintained and permitted to remain at a place which was so close to the
Aside from the question of pleading, however, the verdict cannot stand, because based on inconsistent
Warning.
III. The third assignment of negligence is that defendants “failed to warn plaintiff that said post was dangerously near said track.” If the maintenance of the post and track in such close proximity was not negligence, as must be assumed in the absence of proof to the contrary, the peril arising therefrom was incident to the plaintiff’s employment. Whether the plaintiff assumed this risk depends entirely on whether he knew, or by the exercise of ordinary care would have known, of it. He cannot be held to have assumed a risk of which he was totally ignorant. If the danger was unknown to plaintiff and would not be ascertained by him in the exercise of ordinary care and prudence, it became the duty of the defendant receiver to give warning and for a failure to do so he would be liable. [Murphy v. Railroad, supra, l. c. 119; Railroad v. Vallowe, supra; 18 R. C. L. 684, n. 15.] Under such circumstances it was his duty to exercise ordinary care to minimize as far as possible this peril that was necessarily incident to plaintiff’s employment, if such is the fact. [Railroad v. Dailey, 179 Fed. 289, 291.] There is nothing in the evidence to show that such hazards as the one in question were of frequent occurrence, either in the yards in which plaintiff worked, or on railroads
What we have said in the foregoing paragraph disposes also of the questions raised in connection with the defenses based on assumption of risk and contributory negligence.
Dangerous Track.
IV. As another trial of the case will be necessary it is deemed proper to call attention to some of the instructions given at the instance of the defendant receiver, which are to the effect that the receiver is not responsible for the location and maintenance of the post which struck plaintiff, and that he was not negligent by reason of its installation and maintenance as disclosed by the evidence. These instructions are misleading, if they do not in fact involve
Liability of Milling Company.
V. If the Milling Company negligently maintained the post in question dangerously near the railroad track, it is also liable to plaintiff for the injury inflicted upon him thereby. It is fundamental law that the owner or occupant of land or a building who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils. When it arranged with the defendant receiver to do the switching in and about its mill and elevator it knew and was bound to anticipate that it was usual and customary for brakemen and switchmen in switching cars to be upon the ladders on the sides of cars that were being moved, and hence it was its duty to not unnecessarily maintain posts or other structures in dangerous proximity to the tracks. [Clark v. Railroad, 234 Mo. 396; Ryan v. Transit Co., 190 Mo. 621.] If it was necessary to have maintained the post in ques-
Interstate Commerce.
VI. The Milling Company introduced over the objection of the plaintiff evidence tending to show that the cars of wheat which the latter was engaged in switching at the time of his injury were interstate shipments, and that by reason thereof plaintiff was at the time employed in interstate commerce. On this showing appellant Milling Company insists that its liability, if any, arises under the common law, while that of the defendant receiver is governed solely by the Federal Employers’ Liability Act, and hence that there are misjoinders, both of defendants and of causes of action. Such misjoinders were asserted in the court below for the first time at the conclusion of all the evidence, and then as further grounds of the demurrer to the evidence then offered. Nothing appears in the petition from which an inference can be drawn that the plaintiff was employed at the time of his injury in interstate commerce; nothing in the respective answers even suggests it. The petition charges both defendants with a common-law liability. If the defendant receiver wished to waive his immunity therefrom, it is not per-
Waiver.
VII. Appellant receiver makes the point, apparently, for the first time in this court, that his liability, if any, is governed solely by the Employers’ Liability Act. Not having raised the question in the court below by a pleading of some sort, he is precluded from raising it now. [Taber v. Railroad, supra.]
For the errors noted the judgment is reversed and the cause remanded to be tried in accordance with the views herein expressed.
Small and Brown, CC., concur.
PER CURIAM:—The foregoing opinion of RAGLAND, C., is adopted as the opinion of the court. All of the judges concur.