208 Mo. App. 372 | Mo. Ct. App. | 1921
— This is an action for personal injuries brought under the Federal Employers Liability Act. Plaintiff recovered a verdict and judgment in the sum of $4000 and defendant has appealed. This is the second appeal in the case. [See Glidewell v. Q. O. & K. C. R. R. Co., 204 S. W. 37.]
On January 31, 1916, plaintiff was in the employ of the defendant as a blacksmith at its roundhouse located at Milan, Missouri. On that day plaintiff was engaged in shortening a heavy piece of iron called a draw-bar, which weighed about 200 pounds and was used to connect one of defendant’s engines and tender. The shortening of the drawbar was finished and plaintiff and another workman were carrying the same from the roundhouse by order of plaintiff’s sub-foreman, Hall.' Plaintiff had bold of the front end of the bar with his hack in the direction in which he was going. After plaintiff had taken a few steps, not seeing in the direction in which he was going, he stepped on a piece of scrap iron that had been thrown in the passage, causing him to stumble against a piece of smokestack which struck him in the back and the drawbar caught in his stomach. When he fell plaintiff caught his arm on the smokestack but did not strike the floor. He got up with the drawbar and proceeded out of the roundhouse and laid it down. Through the assistance of his helper plaintiff was taken to the depot, suffering with pain in his back and the back of his head. He was sent home from the station in a buggy.
The blacksmith shop consisted of one large room containing four forg;es, anvils and other appliances used in, iron work. About twenty-five men were employed there. Plaintiff was in charge of one of the forges. The shop had two large doors on the west side and a smaller „ one in one of the larger doors. A standard gauge railroad track entered the shop through these doors and extended beyond plaintiff’s forge which was the middle of the shop. The usual way of passing in and out of the blacksmith shop was along the railroad track and
It is insisted by the defendant that the court erred in refusing to give defendant’s instruction in the nature of a demurrer to the evidence at the close of all the evidence, for the reason that plaintiff was not engaged in the furtherance of interstate commerce at the time of his injury and he, having bi ought his suit under the Federal Employers Liability Act, could not recover on evidence showing liability, if any, under the common law of Missouri.
We think there is no merit in this contention. We construe the evidence in reference to the matter to be that the engine, a part of which plaintiff was working upon, was devoted exclusively to interstate commerce, being used in the passenger service from. Milan, Mo., to Quincy, Ill. The plain inference from the evidence is that the engine was permanently assigned to this work between these points. Defendant contends “that there was no proof as to how long engine No. 12 had been out of service or when it returned to service or whether it was engaged in interstate commerce afterwards. There was no proof the drawbar was afterwards used
It is true that there was no evidence as to what use the engine was put to after it was repaired or whether the drawbar was put back into the engine. However, the evidence shows that this drawbar belonged to the engine and that the engine was assigned to the work of hauling passengers between Milan, Mo., and Quincy, HI. We think there is no question but that plaintiff was engaged in the furtherance of interstate commerce in repairing part of this engine. He was making this instrumentality of interstate commerce fit for the uses intended, that is, commerce between the States of Missouri and Illinois. [Minneapolis & St. Louis R. R. v. Winters, 242 U. S. 353, 356; Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146.]
We fail to see what difference it would make whether the work was being done in a blacksmith shop or while the engine was standing upon the track waiting to malte an interstate run. It would make no difference where the work was being performed. The place of the doing of the work was certainly not the test but the character of the work being done, whether the work was being done in direct furtherance of interstate commerce or work so closely connected with interstate traffic as necessarily to become a part thereof; this is the test to be applied. [Manes v. St. Louis-San Francisco Ry. Co., 220 S. W. 14, 16; Shanks v. Railroad, 239 U. S. 556, 558; Pedersen v. Railroad, supra; Chicago, Burlington & Quincy Railroad v. Harrington, 241 U. S. 177.]
‘It is insisted that the demurrer to the evidence should have been sustained for the reason that there was no negligence shown. We think there is no merit in this contention. The petition alleges that plaintiff “stepped on some scrap iron, which defendant, its agents, servants and employees, had negligently and carelessly placed and permitted to be and remain in said passage
HoweAwr, the record shows that plaintiff tripped over a piece of the scrap iron that composed the pile at the base of sub-foreman Hall’s forge. The clear inference is that this scrap iron fell from Hall’s clamp; that Hall was responsible for its being there and that it remained there from Saturday’s work until Monday morning. It was a few hours after the starting of the work on the latter day that plaintiff fell. The evidence also is that the general foreman gave explicit directions to all persons who were working on forges, clamps and other mechanisms where scrap iron was made to keep the scrap iron cleaned up. The custom was to clean up the scrap iron Saturday evening. However, it is not material in this case as to Avhen the piece of scrap iron over which plaintiff fell was placed in the passage-way. Hall instructed plaintiff to carry the drawbar out. This was a heavy piece of iron and Hall knew that it was necessary for plaintiff to get a helper and that either he or the helper would be required to walk backwards to carry it through the temporary passageway. Uuder such circumstances defendant and its sub-foreman Hall were clearly negligent in having the piece of scrap iron over which
It is insisted that plaintiff assumed the risk. The evidence shows it became necessary either for plaintiff or ' his helper to walls backward and that this aisle which he used was the only one that could have been used by him; .that this passage that was used “was the'only way.” While plaintiff must have known that scrap iron would fall from the forges, clamps and like mechanisms being used in. the shop, he knew that the regular passageway was unobstructed when open for use. He had, therefore, a right to assume when the regular passageway was closed that his foreman would not order him to do work that would require him to walk backward over a temporary passageway without seeing that the same vas free from obstructions, at least, those that were made by the sub-foreman himself. While the evidence shows that this scrap iron could have been seen by anyone looking, it would have been inconvenient for a man walking backward to look for scrap iron in this passage. There is nothing in the evidence to show that the scrap iron was so close to plaintiff when he picked up the drawbar that he could have seen it at that time, and we cannot say that plaintiff assumed the risk in that he failed to keep his head turned around toward his back during the time he was carrying out the drawbar. Plaintiff had a right to assume that the passageway was clear. It would appear to one placed in the position that plaintiff was at the time that it would have been more dangerous to have carried the drawbar in the manner just described. Even under the Federal rule plaintiff did not assume the risk.
“. . . if you find that the defendant, its servants, agents and employees had negligently and carelessly placed and permitted said scrap iron to be and remain in said passageway at the place where plaintiff is alleged to have been injured, and that said passageway and place was thereby rendered dangerous and unsafe and that plaintiff was injured because of such alleged negligence on the part of defendant, its servants, agents and employees, then your verdict and finding will be for plaintiff.” (Italics ours,.)
Plaintiff’s instruction No. 2 defined negligence and carelessness as used in the instructions as—
“. . , failure to exercise ordinary care; by the term ordinary care, is meant that degree of care usually exercised by careful and prudent persons under the same or similar circumstances;”
Defendant’s instruction No. 1 defines negligence as—
• . . the doing of something an ordinarily prudent person placed in the same circumstances, would not have done, or the failure to do something that an ordinarily prudent person, under the same circumstances would have done.”
It is insisted that the verdict is excessive. The evidence shows that plaintiff’s helper testified that after the drawbar was carried out and laid down plaintiff acted as though he was hurt “bad” and that he helped him to the flag station which was “quite a ways,” and that plaintiff “crippled along.”- When he was taken home plaintiff called the company’s surgeon and went to bed. The surgeon came and put a plaster on plaintiff’s back. The pain was so severe that plaintiff was unable to stay in bed and
The judgment is affirmed.
