Tash v. St. Louis-San Francisco Railway Co.

oRailway Ap Company, Louis S. Francisc Louis-San Tash v. St. (2d) 690. pellant. S. W. —76 One, 1934. November Division E. T. Miller and Mann & Mann, appellant. Miller for Atwoocl, Wiokersham <&Chilcott for respondent. railway employed C.—Plaintiff the defendant

FERGUSON, Monett, Missouri, “an In the course company, hostler.’’ at injured brought action, under employment he of that damages, injuries Employers’ Liability Act, for for the the Federal returned, judgment A for en- verdict sustained. assessing damages $8000 defendant thereon, the sum of tered Liability Employers’ Federal applicability of the appealed. has challenged. Act not its demurrer to the evidence first contention is that

Appellant’s erred refus and that the trial court have been sustained should defendant. This necessitates resume ing verdict for to direct a plaintiff. It was evidence, that adduced especially incoming en move the locomotive hostler to duty outgoing engines and the yard to the roundhouse gines from the prop yard and see that were there from roundhouse outgoing water, placed fuel sand and erly with serviced fan- converge extend, Twenty-one tracks at and roundhouse trains. located north of roundhouse from a turntable shaped, south yards into the roundhouse going All premises. yards pass turntable and over the there to or from premises lead these tracks into Fifteen of proper track. onto the thence tracks, through doorway; building separate six each roundhouse space the open in an west of enclosed, are located not which are known, re part premises of the roundhouse; portion.or this twenty-one are numbered garden. tracks These to, as the ferred distance respectively. space The same west, from east arrangement and tracks, passageways, and aisles or with the between building of the tracks maintained in the roundhouse construction ex garden. garden ists in the The aisles between in the tracks the were passageways made of chat and cinders and were maintained as for going employees in in from, the use of the their work engines.. passageways about, eight the These “were to ten feet” engines standing between the rails of the track and when were on to, overhang the tracks were extent the narrowed the of the en gine probably or to six tracks, feet-in width. Under most these garden, in the pit both the roundhouse and there is a for facilitat ing engines pits work on the stored thereon. These are constructed concrete, depth vary are three and a lialf to four in feet in length eighty from to one hundred and ten feet. When a locomo garden, tive is taken into either the roundhouse or over the turn table, on,” in south, is driven “head the front toward the stopped pit over the with the rear end the tender from four to ten or .pit; twelve south of the north end -of the that part of fe^t pit open affording the thus left or uncovered a means of access to men, or exit from working the tools in and materials under engine standing space about the thereon. The im north and mediately night lighted front of the roundhouse by was four lights” electric placed along top “flood at intervals and north building. side light” of the Another electric “flood located top of the roundhouse at northwest corner thereof faced to the * (cid:127) garden. west and downward illuminate In so addition light suspend there was a two hundred-watt electric with a reflector ed, height at about locomotive, of a at the south end of each passageways- garden. aisles or between the tracks in the The lights were controlled switches located in or near the office Plaintiff roundhouse. worked from four in the o’clock afternoon midnight. until duties as “hostler”' have been stated. He .His p. n injured m., '7:40 1930. January 22, about or 7:45 days very:cold weather had preceding; for some snow covered ground; passageways the-snow in-the between aisles or the tracks garden walking was,'however, “packed down the men over it.” On night degrees' “it was about fifteen below zero” duty defendant’s employees, assigned, to whom such “kept up steam engines” garden. on these engines While the garden enginemen mechanics-and went and worked about (cid:127) -engines making inspections, keeping up. at various times steam, servicing engines maintaining them readiness to garden upon assignment moved out of the- or-as--ordered. The servicing -engines maintenance and part of these- no 'incoming duties. merely He moved the‘'points ,when: yards'where' they-'had'been placed in -detached -from n - coming ¡¿laced trains'to''the 'roundhouse- or and -there n proper outgoing engines on track or moved from the garden yards, roundhouse or supplying to the and there. after engine fuel, coal, “parked” with oil or sand and water it at the proper place outgoing so it could be attached to trains. Plaintiff testified that “the instructions were blow to down four night they or five times each while were in the terminal.” “blowing off” of steam and hot water at intervals is referred “blowing,” “blowing out,” off,” “blowing in the evidence “blowing engines. stated, plaintiff down” the As testified this was required night engine “each four or five times while” an “in was yards “terminal” terminal.” The includes the as well as the premises. engine roundhouse To “blow off” or “blow out” the necessary open it was the “blow valve” which is underneath off engine opened by operation is of a lever in the cab. “pulled” opens When the lever is the “blow off valve” and steam discharged engine. and hot water is under and at the side of the operation Plaintiff stated: “I am with the blow familiar of the cock; by jerking opened open; it is it it a off makes noise you enough can it a blow cock. a loud sound that detect to be off open somebody pulled This off cock could not without it.” blow pit big pipe” Plaintiff further stated that there was each “a “big boiler;” “big pipe” which with connected purpose carrying pit in the for the off the steam and installed discharged engine hot water when an was “blown off” track; standing pit while on a that the “rules” and “instructions” making required employee an such “blow off” “connect” the big by making is engine pipe.” to the It evident that “up when a pipe with this “blow off” made steam connection discharged pipe be into and carried off but hot water would steam water would be if the was not made the and hot connection engine discharged into the and underneath at the side of injure might envelop be, at likely workmen who and would passageways time, between about or near the effect, stated, In pits. this connection the tracks being yard in the before taken engines were “blown off” that the being garden returned there from and after to the roundhouse or standing at times and also while roundhouse or “blowing garden. Defendant’s evidence as to the roundhouse Here we set out engines will hereafter referred to. off” questions appearing and answers the cross-examination certain plaintiff: “Q. thing be blown off was not an unusual It "Well, A. standing pit tracks is it? while on one of these time yes there, sir. they blow them down done,

“Q. A. It done; you frequently? is it see it done But is against the rules. sir; yes is not instructions. It it They big supposed up pipe are them connect connected big boiler.

“Q. doing way? No, Now hadn’t A. sir.” practice” Plaintiff stated that it his was “custom and eat- before ing engine supper his take which protect” to the was trains Nos. “to m., p. p. 6 (Monett) and 10 in there” 9:15 “due 11 re- and m., spectively, garden yard, “get water, out of the and into the fuel, engine and sand” “leave át and the furnished the coal in chute” yard if developed engine the so that trouble in had the on either of 10, 6 trains, necessary said or and it was to take it out of service engine ready substitute; would be immediately and available aas engine being that 1510 was 10; then used 6 protect” “to trains and passenger that said trains were 1510 engine interstate trains and. only trains; was used night, on interstate that on this about and p. m., brought 7:30 helper engine he and his 4027 yards from the roundhouse, placed the proper into in it on the track the roundhouse leaving engine then his 4027 helper up and write “to on board” the engine get he went 1510, garden, intending which was in-the garden yards, take it from supply fuel, the into the it with water place ready protect 10;” and sand and 6 “to and trains the that lights lighted garden electric which premises the and the roundhouse garden night had not been on turned that and that the was shrouded in he Engine 1510, darkness and did not have a lantern. burn- oil ing engine, standing 20 garden 834, was in engine on track the and burning engine, track, a coal 21, on the track next to the west.

The north 834 12 end of was about feet south of the north pit leaving of part pit end the under track the Plain- open. of roundhouse, tiff that he testified went west from the across garden, passing engines standing to the north of the on tracks of track until passageway east he reached the aisle or between along that, tracks and south passageway; then got I engines, “when in between 834” these two 1510 and “blow engine 1510, any warning cock” being given, off on without was ‘‘fog up opened and a steam and hot water there ... I rolled get out of it and stumbled whirled on some in fell coal pit (under engine 834) track 21 back alighting on my right When I pit shoulder and head. fell into that it knocked myself unconscious; everything went dark. I pit me found in this trying get trying get my in I up up laid hand some ... I in there. felt in . pit chunks of coal the coal pit big my chunk of in as head . There was a coal go I heard it pit. in, I kicked the coal into the heard it hit wall bursting. regained I some chunks When consciousness fainty, . . sick, dizzy, I in pain in was down my right I shoulder. climbed there and went to head and out of staggering.” I says Plaintiff he was the roundhouse office. Mr. general foreman, Garrison,

met at office and other tlie twenty employees whom he named and after about minutes one his him fellow took home in a car. The evidence as to injuries the nature and extent will be set out we reach when assignment appellant grossly makes verdict ex- “is against presence passageway coal, or cessive.” The upon plaintiff stumbled, explained accounted for testimony way. The roundhouse heated with in this burning fifteen stoves and there at least coal stoves the round- house, coal each aisle stoves in offices. The used one fifteen, more, these from the of. coal stoves obtained tenders get- engines standing garden. In burning in the roundhouse and ting duty it employees, the stoves the whose was to maintain coal for stoves, burning engine go upon fires a coal would tender of coal from “down the roundhouse and throw the tender walk, passageway aisle” or between the tracks then and the stoves with a wheelbarrow” would “let they “wheel it to in coal,” passageway the tenders “lie this thrown from there” wheeling they up by it from stove another with “until used it one Necessarily maintaining constantly in the wheelbarrow.” fires throughout day stoves, night, during the fifteen or more in- prevailed plaintiff’s date cold weather which on the extreme date, large days preceding next a jury, and for amount several burning engines tenders taken of coal of coal was from employees garden. engaged maintaining The roundhouse “get the best coal.” Ofttimes the thrown fires in the stoves would coal all be passageway pieces would not removed some of coal into the along passageway point left or about the at the scattered would engine liad thrown Further coal been from tender. where the being supplied with fuel before taken the round- engines were into pieces fall garden and sometimes of coal would from the or house engines burning being placed. It they coal tenders inspect passageways for, plaintiff’s duties to or part was not might by be thrown left there up,” “clean the coal charge maintaining might fires the stoves which or that, “they (the Plaintiff defendant fall the tenders. testified duty keep man” it was that coal railway company) had a whose “to engine placed up” after in the round- and also that cleaned (cid:127) fire, duty look “it come and garden builder’s house 'or any if to see coal rolled off on coal burner .around those . . coal up ahd clean coal rolled off these ground general at who was engines!’'’ Defendant’s foreman Monett burner capacity plaintiff’s prior injury at time of employed in that day eight have laborers on the shift from “We thereto testified: p. dirt, every any pit that clean between four-thirty M., m.A. might premises.” anything accumulate on the (cid:127)trash, else that or coal

1157 Engine 834, burning engine, a coal standing pit-track on Rad 21 for about an preceding hour a half plaintiff’s fall into pit when he coal” “stumbled some presumably and at least , track throughout had been in day. use The work in the garden roundhouse and seems day to have been night. continuous general Defendant’s foreman, Garrison, was the principal witness in its engine behalf. He stated that 1510 regular engine was the assigned to train which left Monett at and, four inferentially A. m. least, at denied it testimony that was the custom to set engine 1510, any engine, or other protect” out “to trains and 10. said, however, He any that if developed trouble had with the ‘‘ on either train -or would have sent us a wire and we would prepared engine 1510” have but substitute “we received no such ’’ wire. He admitted that hostler would take an out of the ‘‘to, get ready roundhouse for a run two to three hours before time for the depart.” train to said, witness and he respect corroborated several other employees of de- fendant called as defendant, witnesses for “lights that the were all garden’.’ on in the roundhouse and at all night. times that He ‘‘ further testified cleaning that the work of up any coal or other ob- struction around the tracks from the up turntable to the stalls” was taken “day care of shift” of “laborers” “between 8 m. a. p. m.,”, 4:30 but “there working nights was no one purpose;” shortly after came reported to the officeand that he fallen pit into the under track and the circumstances thereof, made he “an ground examination of the around 21” any object but “did not see coal lying ground, other on the all;” saw no coal there at that he had personally interviewed “all were.working of the men who night” there that and “did not find any engine 1510, any man who had been on purpose, for an for prior hour the Concerning to time Tash came into the office.” the “blowing engines off” of engines Garrison testified that were not garden roundhouse;” “blown off in the or that the “instructions engines were” that the by be “blown off” yard the hostler “in the thing inbound” and “he does engine the same after outbound the garden;” has been removed from the roundhouse or and that “these engines by off, hostler, are blown the below the coal chute in that or vicinity (in yard) the on flat track any where there are seldem em- ployees. That is on first turned in off the road and before go come across the turntable and into the roundhouse or the garden. engine After prepared the for in the service roundhouse garden hostler), in or it is moved (by across the turntable the.

(into yard) gives to the water crane where the hostler it water opens testimony and at that time blow .off cock.” This relative to the concerning, foreman and the method and instructions of, engines” “blowing practice off is. the- corroborated two other

1158 helper witnesses Plaintiff’s testified as for defendant. who employees that, (plain- when for the hostler witness defendant testified as called garden engine an or tiff) ready to from roundhouse move was ready engine get out, and then “get on to back it he would injured me;” night he and Tash Tash was that on whistle ‘‘ ” p. about 7:55 4027 roundhouse engine into the ; m. took caught up with our work” and “we Tash said: “We are then nothing “get- at that about lunch;” said time was better eat Tash and as 1510 left roundhouse ting engine out;” that “started “thought” supper; to that the witness witness started home ‘‘ ’’ generally supper most home for lunch; and Tash went eat just roundhouse.” Defendant’s the hill south of the as he lived on and tes- Schucht, employee an the roundhouse witness, lights;” “turned “duty his turn that he it was on tified that lights evening pit lights that as soon as both flood and on lights were on all time” after got enough” “the and it dark 1510 five or six engine “somewhere about that; was on that he “plenty was of water fire and that there about o’clock” to see work other en- had “similar to do on he in the boiler” West, an employed by defendant gines.” Defendant’s witness 21 engine pit “about on on worked inspector, that he stated around got “I somewhere night;” on the that, 7:30 that twenty something like me ... it took seven-thirty or seven off cock “opening a blow hear he not minutes” and that did I there.” was there while any from around escaping steam or garden that Goodnight, said he worked witness, Defendant’s and that he o’clock” evening 7:30 engine 834 “between evening” “didn’t hear at all that Tash out there “didn’t see ’’ working I out there. any was while outcry or sound The petition alleges, plaintiff, that as performance of his duties, attempted pass down the walk or passageway between pits dark; premises, said pits walk and “were ’’ lighted; not guard that there was no rail pits; that about said rough, the “walk icy, uneven, repair,” etc; out of “when he point reached a on said walk aforesaid near well” “great volumes of vapor suddenly ejected hot steam and engine standing pits defendant, over one of said and that its agents, servants and negligently carelessly caused permitted lump lumps of coal be' and remain said walk and reason of the aforesaid facts and conditions slip, blinded and edge caused to stumble fall over of and pit.” charges into said well petition specifically or then as (1) negligence; light causing pits; (2) to the walk and failure and permitting ejected (3) vapor hot steam to and escape; and be caus- ing permitting aforesaid;” and and the place coal “to be remain at (4) (5) a rail guard pit; failure to have the failure about and to lighted, repair, walk and in keep the even, smooth and etc. It is alleged that “by then reason of the “existing conditions aforesaid” place” said time and walk or passageway the was dangerous ‘‘ resonably and not negligently safe and that defendant and careless- ly plaintiff failed and omitted to furnish reasonably place safe general work.” is a plea to The answer denial and of assumption negligence having of charges risk. The other of been abandoned by plaintiff charges two negligently causing of and permitting ejected' vapor steam and “to and escape be at said time place” negligently carelessly placing permitting “lumps of in passageway coal” to remain and upon place “at referred evidence,” jury, to were submitted conjunctive, by plaintiff’s 1. instruction numbered

Our review of the action of the trial court in refusing the demurrer to the evidence is confined to a determination of whether support grounds there is substantial evidence to negligence of recovery. only a basis submitted as We look not to the evidence plaintiff adduced and the natural and reasonable inferences any arising part therefrom evidence but also the de that tends aid fendant to corroborate or case. The rather made, supra, and detail statement of the evidence have would full we analysis unnecessary seem to make extended thereof here such a demonstrate that the evidence was sufficient sub character as warrant the submission of either and both stantial grounds negligence jury. But submitted so strenu ously impelled to appellant press its demurrer we are further does discharge steam. facts. First as to the It was discuss the required engines company’s and the instructions customary terminal be “blown off” several under steam maintained said the instruc while in the terminal. Defendant’s foreman times hostler, off” at certain be “blown tions were that yard employees” only in the “where there are seldom points into the round across the turntable about, before were taken yard from the roundhouse garden when returned to the house or testimony the effect Inferentially at least his is to garden. garden, in the manner engine in the “blowing off” of an been would have engine was “blown off” states this plaintiff

which testimony is Plaintiff’s contrary the instructions. improper and garden well in the roundhouse as engines were “blown off” required yard and rules instructions that the in the into pipe with the doing connected so the be away but discharged and carried could and hot water the steam making garden without off” in the engines were ofttimes “blown engine this shows that The evidence this connection. time prior to than three hours more standing in the en- went Defendant’s pit. fell g'ine, engines and garden, tlie other in the for main- purpose the of taining slight steam, making tests,' inspections any certain and re- might required. Only pairs that employees be of defendant were permitted garden premises; or the and about roundhouse tres- passers night and is were forbidden there no that on this evidence any person employees other defendant’s was about than on or the premises. tending made, There show, is no evidence nor claim engine, by that the “blow off” valve on appliance or the which ejected, the steam and water was or out hot become was might opened or it order defective so that have or the steam and hot suddenly ejected cab, by water have been without the lever the being opened, operated by which the blow off valve was- someone. On the other hand all the evidence was that “blow off cock” the opened by engine only operating could be in the cab of someone the controlling lever which was located there and that when the the ... opened “make noise loud “valve” was it would it you enough would it to a blow cock.” Plaintiff sound detect be off opened, the “blow off cock” that he positively testifies that was being that, it made with open heard and without the connection rules, engine carry pit, required by the pipe off in the ejected off,” into and across “blown and the steam an-d hot water engine. cab passageway. Plaintiff could not see into the evidence, think, an we warranted The facts and circumstances engine jury off” one of inference that “blown testimony employees notwithstanding the of defendant’s defendant’s night “every-man” that that he interviewed who worked foreman garden and engines in and the roundhouse on about engine at in the cab of had assured him that he not each prior an hour been within and' had not time testimony us and is not before admissibility thereto. tfiat considered, weighed accepted or re- .jury went to be it such in the case and accorded along with other evidence jected, certainly testimony give it. such jury fit to But as the saw value employees that none of defendant’s indisputably not did establish only way the engine, blow lever in the cab of operated the engine nor “blew off” the opened, valve could have off and circumstances from the.facts inference as a reasonable foreclose so. Further defendant employee of did that some evidence work- that defendant’s warrants conclusion evidence employees were that other in the knew ing upon the using garden engines might Avorking in and about carrying use in maintained their provided passageivays ample was, think, evidence we their work. There on n negli- defendant employee jury might properly find “bloAving e., off” engine, i. gently “bleAVoff” the connecting with the first without place time carry pipe giving any. warning, ascertaining off without wheth- employee degree was near he er fellow failed to exercise that surrounding required. which the conditions and care circumstances sufficiency ¥e now turn the evidence to the sub- warrant negligence part causing per- mission of on the of defendant in and mitting lumps coal, against stumbled, or plaintiff the of over in passageway. nondelegable, to and the It was the con- be remain duty tinuing ordinary proyide of use care main- defendant to and to reasonably place plaintiff carry tain a safe for on his work. The alleged duty gist master real violation of that of the is the of this passageway coal presence The in the was action. accounted by plaintiff’s evidence. There was evidence from which the charge jury employees maintaining in could defendant’s of find that stoves continuous fires in the fifteen or more left some of the there pieces passageway coal which had thrown-into the lumps or engines. obtaining burning in the from the tenders of coal coal in master. employees respect this was that of act of these the presence of explain does not undertake to otherwise the Defendant fallen in the unless it had from the tender passageway the coal there merely burning engine. denies that fact defendant of a coal tIn any passageway at the defendant place..where was coal there says duty of Plaintiff testified it was the he stumbled and fell. around” “coal burner en- “come and look fire builders to up.”

gines ground” if on and “clean to see coal rolled off epgine standing 21 Engine 834, burning track coal had- on Enginn a half time fell. prior, for an hour and defendant oil.burning engine. If recalled, 1510, 20, it on track will engine 834 passageway fell the tender coal 21 .at placed that- least when onto track and over it was moved evidently elapsed fire had and half and the an hour builder cleaned space had not inspected the about and not un re- builders’.duty duty. if in this fire as was his But coal incidental it must be remembered spect merely be considered duty it wliose. employed defendant men testified that passageways “to those keep the free of obstructions' and follow this, Concerning up.” keep that coal cleaned there and men employed however, that defendant defendant’s foreman testified p. duty four-thirty eight and whose m. who worked from m., a. walks or passageways is the every pit,” clean it was between type anything.” “trash, The same keep coal them clean of and went, continuously work and movements. and character of ground day, night. both the roundhouse .As jury instructions négligence -by(cid:127) (cid:127)plaintiff’s submitted to the agents, servants required defendant, its jury find “that were and, negligent placing employees permitting careless evidence lumps coal placed to be remain referred t.o 1162 dangerous thereby rendered working place was conclude, substantial was, reasonably we There safe.” and not submitted, whether question, jury thus to take to the evidence coal permitted caused and negligently employees defendant’s a sub sufficient evidence the.passageway and remain

to be a reasonable finding jury, by the to warrant stantial character passage into thrown placed had been the coal inference, that remain there. permitted to way by defendant’s [See W. 219 S. 532, Q. 281 Mo. Co., Chicago, B. Railroad & Lock v. App. 208 Mo. Co., Railroad Quincy, O. & K. C. v. 919; Glidewell Railroad Francisco 677; v. St. Louis-San 236 S. W. Brown 372, Co., Ry. Southern 1069; Laughlin v. K. C. 227 S. W. (Mo. App.), Co. 490, App. Ry. Mo. Co., Kelly U. P. 3; 205 S. v. 459, Mo. W. 109, Co., 326 Mo. Bridge Ill. & Mo. 818; v. So. 125 W. Smith S. Co., Mo. Steel Works Standard (2d) 1077; Koonse v. 30 S. W. (Mo. Co. Biscuit v. National 531; Milzark S. W. App. Co., Railroad F. L. & San 832;W. Hawkins v. St. 259 S. App.), 201, App. 189 174 S. W. Mo. 129.] discussing While sufficiency of the evidence make case jury, connection, for the and in will we note appellant’s refusing contention that the trial court erred its D Instruction 4, directing theory a verdict for defendant on the that, as a matter law, evidence, of under plaintiff injury. assumed the risk of Looking law assumption of of risk as Supreme stated Court of the States it is in Chesapeake United said & Railroad Ohio 241 Atley, 462, Co. v. De U. S. duty it is not the of an em ployee extraordinary dangers “to exercise care to discover may negligence employer arise from the of the or of those for whose con employer responsible, employee may is duct the but the assume that employer agents proper respect or his have exercised care with safety contrary, to his until notified to the unless want of care danger arising ordinarily and from are it so obvious that an care person, circumstances, ful under the would appreciate observe and Ry. Valley, them.” In Globe & 232 U. Hall, Gila Northern Co. v. 94, employee right S. is “The has a said: to assume that his employer proper respect providing has exercised care with a safe place Chesapeake to work” and it is there held & Ohio and' also 462, v. Proffitt, employee Railroad Co. U. S. “is not to assuming employer’s be treated as a risk that is attributable to the negligence it, until he becomes aware of or it is so observable plainly that he must be to have known it.” Federal rule The presumed & assumption of risk stated in Western Co. v. Toledo Railroad Allen, 165, that, specified 276 U. S. except in Section of the cases, Employers’ Liability eliminating Act the defense in certain employee employment “the assumes his and ordinary risks of fully appreciated by when and obvious or known him the extra- negligence dne ordinary employer risks and those of his and Jenkins, Admr., Co., 335 employees.” Ry. v. fellow Wabash [See (2d) compilation 748, 1002, Mo. 73 S. W. and the of Federal eases Assn., assumption of risk found in Webber v. Terminal Railroad (2d) present 335 Mo. S. W. facts case con 863.] light sidered in the risk assumption Federal doctrine of refusing we find no error in the action of the trial to de court clare, law, plaintiff as a matter of assumed the risk and to ground. Assumption was, direct a verdict on that of risk under the question facts, jury properly for the and submitted under appropriate instructions.

Appellant complains plaintiff’s 1, submitting Instruction conjunctive alleged e., specific negligence, two i. acts of . . discharge permitting humps . “placing of steam and the . . placed place of coal to be remain at referred ’’ jury if the evidence. The instruction tells the find approached plaintiff great vapor “that as said volumes of ejected . . . were suddenly and steam from the and the plaintiff was atmosphere thereabout became so thick and dense that thereby whereabouts, so, and unable see his if blinded and that vapor while was in said steam and as aforesaid and unable way lumps about he stumbled and fell coal to see his over said defendant, agents,

and that its servants and causing negligent permitting steam careless said ejected vapor escape place to be at said time and and were negligent placing permitting placed and careless in to be evidence, lumps place remain the of coal at the referred to in the working place thereby so, if and that rendered dan- gerous reasonably your . . will and not safe then verdict plaintiff.” be for We have held that evidence was such as to .the However, alleged negligence. of acts of warrant the submission both argues jury might well appellant that the have found that the dis- negligence and charge steam under the circumstances was not of refusing D 10, in that therefore erred its Instruction that the court negligently escaped jury if the found “that no steam immediately 20 and 21 and plaintiff 1510 while was between tracks read- he fell” verdict be for It seems before the “must defendant.” 1 ily by plaintiff assumed an extra apparent that his Instruction unnecessary assuming jury burden and that while the found and discharged place, the steam was at the time and as stated believed circumstances, by plaintiff, discharge not, the thereof was under the act, negligent yet finding against a in jury the its was warranted ground negligently placed per- defendant on the that defendant lumps place placed mitted of coal to be and remain at the passageway plaintiff trying and hot where in to avoid the steam against thereby water stumbled them and .was caused to fall into pit. the in de- trial did not err its refusal of court therefore D might, prejudice 10. to fendant’s Instruction defendant, Plaintiff without. requirement 1, his have omitted from Instruction that jury discharge negligence. “Re- find that of the steam was negligence quiring plaintiff grounds of jury to find for on two merely only when It necessary, one of the is not error. is two requiring negligence unnecessary jury as an matter.” to find to (2d) (Mo.), v. & S. W. Baltimore Railroad Co. Ohio [Berry 782.] It 3, assumption relates of Plaintiff’s Instruction risk. fully correctly applicable does not direct a verdict but states the governing assumption appellant rules law risk con of of nor does that, appellant tend otherwise. But criticises statement therein right a “when of defendant he had entered the service ordinary in the conduct assume that defendant would exercise care says language Appellant by of its the instruction business.” that have a fact the truth of which” should “assumed existence of jury. reading In instruc been left to the determination of the impressed argument tion we are with the as whole not language have segregated complained thus of could influenced jury can prejudice nor we think it be said defendant’s do in case. to assume as controverted issue of fact established a appellant They repre been examined. cases cited have are The. clearly the instruction assumes sentative of that line of cases wherein and essential issue of fact. existence some controverted assigns court Appellant refusal the trial error the jury D 14. directs the of its The instruction in effect Instruction negligence on “guilty find account of the defendant' it had been presence piece of coal” “must find that said ordinarily prudent per- place length for such time ’’ . . The instruction known that it was there. son would have ignores theory negligence respect wholly plaintiff’s instruc- given with if would have been conflict coal and theory employees defendant’s submitting his that the correctly tion and remain placed the coal to be in the first instance or caused unsafe and rendering plaintiff’s place of work passageway negligent. doing so defendant’s an accident refused but the trial court Defendant offered reviewing the further Without Appellant claims error. instruction. no the evidence say we find basis evidence it suffices to ruling against appellant assignment such an instruction. In City Company, Hogan Service following, v. Public are Kansas we Ice & Fuel (2d) 707; v. Polar Wave S. W. Sloan Mo. Mo. Wright Quattrochi, 330 (2d) 476; v. Co., 363, 19 S. 323 Mo. W. 1082; (2d) (Mo.), 57 W. (2d) Dyer 49 S. 173, 3; W. v. S. Mitchell 289, (2d) our recent (Mo.), 64 W. v. S. Brewer Silverstein Co., Goodwin v. case of Missouri Pacific Railroad Mo. 4 (2d) 988, S. 99 W. general foreman, Garrison, testifying Defendant’s on direct stated, plaintiff examination that was fie officewhen came there pit right fie and “told me fiad fallen a and fiis shoulder was in jured;” plaintiff twenty-one; fie pit that said fell into that “we took I him jumper off his arm. I work fiis wanted to ascertain ’’ clothing dry. whether or-not fiis arm was broken. His was "Where question was “If propounded: a man had been close to n a a short time before that and blow off cock had been great quantity opened and a steam had emitted that him enveloped sufficient to have that would steam have been clothing?” objection sufficient wet fiis Plaintiff’s was sustained ground a-subject on the that the “matter not for expert” or testimony. opinion ruling assigned This of the court is as reversible opinion error. We are inclined court trial did not ruling fall into error that the matter was not proper subject a testimony. opinion The witness had stated that cloth ing dry. jury If accept fit to saw the statement of the wit inference, regard arising ness in that to defendant, favorable jury therefrom is one which a could well make without the necessity opinion evidence to assist them. In view of that situation even if it be conceded that was entitled to have the defendant witness if jury opinion great tell in fiis a quantity of steam had immediately enveloped plaintiff fie before entered the office it would clothing” rejection “been sufficient fiis have to wet of the tes timony hardly could a prejudicial of such itself nature dqemed to amount effect as to reversible error. remaining assignments have to with do the instruction' damages on the measure of and the amount of the verdict there require that we examine relating injuries fore the evidence sustained: We have stated that upon regain-, testified that ‘‘ ’’ ing climbed consciousness he out and went to the office. Continuing testimony concerning injuries a review his his subsequent suffering pain during he states that the time he was (about minutes) awaiting arrangements in the office' him take he pain back, right home suffered in his shoulder; to his head and shortly after he his home Dr. West there; arrived reached manipulated “crippled Dr. West his arm” “very which was pain rubbing “a gave ful” and him alcohol” bottle with directions to alcohol;” pain the arm with that he continued “bathe to suffer arm; heavy weight that “it seemed pull shoulder' like ing my “my arm arm” and felt numb down and hurt me in shoulder;” couldn’t;“try arm; he use” his about week passed again he a doctor when before consulted he called on Dr. give “did me

West but Dr. West not treatment instructions my sling convenience;” in 12th I arm a that put so “about Louis; February” Hospital he went Frisco in St. or 13th of ‘ ’ ‘ ’ head; I suffering my shoulder, at that was still with back and time “they right X-ray my hospital that at took shoulder and rest, gave my pain. make ease I about me medicine to me was there week;” pain he home but the continued and a that returned after days any hospital back to about ten he went but “didn’t receive resting only for, medicine, something Iwhat called to ease treatment my day in me, pain I for it or three times a when the would call two get bothering me” and that thereafter he shoulder would osteopathic physician Dr. Iiazel an at Monett. Plaintiff treated injury right as of the his hand was further testified that a result hand, strength fingers” “useless;” that he “has no of that a my “button clothes” and “cannot hold knife or fork” cannot food;” right put by “I in that hand “cut that cannot hand time; face;” that his arm “numb” all my feels that has he “my “pain in his all time” and kinda me a shoulder back hurts my back;” small hips, that he is nervous between the awake;” expended $70 keeps that he had about “nervousness me yet Dr. treatment and was of trial for indebted therefor to to date though such Dr. the amount of indebtedness not shown. Hazel plaintiff, Hazel, testifying as a that he examined witness for stated X-ray made; pictures opin- in his that treated partial “a X-ray evidence, introduced in show pictures, ion the shoulder;” diagnosed right plaintiff’s he of the dislocation right ... injury slight of the as “a a subluxation dislocation articulation;” prescribed packs” he first and used “hot shoulder sling.” in a It arm and shoulder seems then “bound the sling” days. Dr. Hazel said three or four arm “bound complete wit- not a dislocation shoulder.” This “there was inflammatory “Apparently con- further: there was an ness testified tissue, the The bursa is the soft cushion around dition of bursa. “I right is “apparently arm useless” and joint;” anything” that can be done “to there is promise wouldn’t Missouri, DeTar, physician Joplin, A Dr. make it useful.” during first time the trial. He testified plaintiff for the examined marked limitation of motion. arm “shows joint tissue, is crepitation, scar due to marked There is . . . is not in condition bursa normal bursitis subdeltoid scar tissue there. There doesn’t seem apparently There now. it has This girdle or socket or been decreased. fluid suffering inflammation of the bursa under the is now man pad of the shoulder is the muscle muscle. The outside deltoid you of motion all directions and ... he limitation has deltoid joint you popping his when move get snapping marked now.” On . shoulder is not dislocated direct examination . Ms following questions given: asked this witness answers ‘1 you say Q. permanency What have conditions A. you to? This condition have testified has existed about history becoming I year; see, is a of worse. don’t my a there permanent. opinion, why it shouldn’t be

“Q. your capable any arm opinion In that now is of use? A. it:

Well can’t use he “Q. you say is A. And would then useless? It is present at ’’ far so as he is concerned. Appellant says giving trial court erred instruc- damages tion on the of measure as instruction authorized the damages permanent of injury assessment for when “there was no upon finding evidence which to permanent injury.” base of The quoted excerpt testimony DeTar, from the of Dr. taken with the medical testimony part plaintiff whole, of as a evi- afforded tending dence to show found, that conditions the doctors injury, and attributed permanent to were of a character. Too testimony Dr. susceptible Hazel’s is his construction that opinion assignment such conditions could not be remedied. The must against be appellant. therefore ruled

It contended, however, is $8000 that the verdict of in favor of is, plaintiff facts, under the excessive. thirty-eight Plaintiff was age injury. years earning of the time of $5.63 He hours, working eight Though each of shift he stated he earned on average per developed upon $150 of month it cross-examination during per $150' had not earned as much he as month month the preceding year amount thereof left uncertain. pain The injury evidence to in the back a back is very or unsatis- factory. appear plaintiff complained It does not ever aof injury Hazel, back Dr. Dr. either West or the two doctors who injury him nor doctor treated that either treated him for such an in their plaintiff or found evidence thereof examinations of nor do they, DeTar, injury testimony. Dr. or refer a back in their The evidence as to the extent to which is to “grip” able ob- hand, i. jects right hand, e., strength use his of that con- is plaintiff says fined what about that. medical ad- His witnesses mittedly not, not, did could determine that other than as such by plaintiff. condition was to them stated There no evidence fingers that hand are stiff or that the movement thereof character, most, positive is other than normal and natural. of a testimony medical does show is suffering that he is causing what the doctors call “subdeltoid bursitis” stiffness joint directions, marked motion,” shoulder and “a limitation of in all degree shoulder, opinion or,per the arm and no as to the cent there- stated, being opinion plain- such condition 'is in the do permanent. Plaintiff’s medical witnesses medical witnesses

tiff’s arm useless” say “apparently that at of trial the the time evidently based “he statements were present,” can’t use it at these ability to his doctors as upon plaintiff had stated to these what any reliable or examinations a'nd not tests his arm hand use he had Plaintiff said that matter made the doctors. to determine injury; his wife testified that his hand' since the been unable use him “about friend who said she had seen not done so and a he had injured” he was every day three after for two or weeks seen him his since” said “she had never house “frequently injured.” Plaintiff anything he was right his hand- for since use I “I have driven a car since was on cross-examination: admitted driving away right I T. I went to car, drive a Ford Model hurt.- experts X-ray examined got I Defendant’s medical after hurt.” shortly made, Dr. Hazel X-ray had caused to pictures which It plaintiff introduced evidence. injury, and which after the opinion pictures Dr. it was Hazel’s these be remembered will right articulation.” How shoulder subluxation of “a showed thereof, having an made examination said ever, defendant’s witnesses^ evidence of dislocation, no subluxation or pictures showed “abnormality of-any Plaintiff injury arm kind.” shoulder or hospital expense except treatment expense for' medical no being charges Hazel; by Dr. amount shown made thereof the conclusion the verdict excessive We are inclined to $70. 111, 145 S. Co., v. Electric Mo. $3000'. least [Davenport Ry. (Mo.), 155; S. W. Mahmet 454; Joseph Hulse Co. W. v. St. 1014; (Mo.), S. Mississippi 294 W. Clark v. American Co. v. Radiator (2d) Ry. 406, T. S. W. Co., & B. Mo. River 174.] days remittitur will within ten enter a If therefore date of the judgment $5000 will stand affirmed for $3000 judgment reversed and judgment; will- stand original otherwise the Sturgis GG., Hyde, concur. new trial. cause remanded for a adopt- by Ferguson, foregoing opinion C., is PER CURIAM:—The judges All concur. of the court. opinion as the ed Raymond Friend, Roland A. His Next Infant, v. Wise, Wise, Railway Company, Corpora & Pacific Chicago, Rock Island (2d) 118. W. Moore, Appellants. S. tion, L. C. —76 One, 1934. November

Division

Case Details

Case Name: Tash v. St. Louis-San Francisco Railway Co.

Court Name: Supreme Court of Missouri

Date Published: Nov 16, 1934

Citation: 76 S.W.2d 690

Court Abbreviation: Mo.