Tash v. St. Louis-San Francisco Railway Co.Tash v. St. Louis-San Francisco Railway Co.
Appellant‘s first contention is that its demurrer to the evidence should have been sustained and that the trial court erred in refusing to direct a verdict for defendant. This necessitates a resume of the evidence, especially that adduced by the plaintiff. It was the duty of the engine hostler to move the incoming locomotive engines from the yard to the roundhouse and the outgoing engines from the roundhouse to the yard and see that they were there properly serviced with water, sand and fuel and placed for the outgoing trains. Twenty-one roundhouse tracks converge at and extend, fanshaped, south from a turntable located north of the roundhouse premises. All engines in going from the yards into the roundhouse premises or from there to the yards pass over the turntable and thence onto the proper track. Fifteen of these tracks lead into the roundhouse building each through a separate doorway; six tracks, which are not enclosed, are located in an open space west of the roundhouse; this portion or part of the premises is known, and referred to, as the garden. These twenty-one tracks are numbered from east to west, 1 to 21 respectively. The same space or distance between the tracks, with aisles or passageways, and arrangement and
“Q. It was not an unusual thing for an engine to be blown off any time while standing on one of these pit tracks is it? A. Well, they blow them down there, yes sir.
“Q. But it is done; you see it done frequently? A. It is done, yes sir; it is not instructions. It is against the rules.
They are supposed to connect them up to the big pipe connected to a big boiler. “Q. Now they hadn‘t been doing it that way? A. No, sir.”
Plaintiff stated that it was his “custom and practice” before eating his supper to take the engine which was “to protect” trains Nos. 6 and 10 due in there (Monett) at 9:15 p. m., and 11 p. m., respectively, out of the garden and into the yard, “get fuel, water, and sand” and “leave the engine furnished at the coal chute” in the yard so that if trouble had developed in the engine on either of said trains, 6 or 10, and it was necessary to take it out of service this engine would be ready and immediately available as a substitute; that engine 1510 was then being used “to protect” trains 6 and 10; that said trains were interstate passenger trains and engine 1510 was used only on interstate trains; that on this night, and about 7:30 p. m., he and his helper brought engine 4027 from the yards into the roundhouse, placed it on the proper track in the roundhouse and then leaving his helper “to write engine 4027 up on the board” he went to get engine 1510, which was in the garden, intending to take it from the garden into the yards, supply it with fuel, water and sand and place it ready “to protect trains 6 and 10;” that the electric lights which lighted the garden and the roundhouse premises had not been turned on that night and that the garden was shrouded in darkness and he did not have a lantern. Engine 1510, an oil burning engine, was standing on track 20 in the garden and engine 834, a coal burning engine, on track 21, the next track to the west. The north end of engine 834 was about 12 feet south of the north end of the pit under track 21 leaving that part of the pit open. Plaintiff testified that he went west from the roundhouse, across the garden, passing to the north of the engines standing on the tracks east of track 20, until he reached the aisle or passageway between tracks 20 and 21 and then south along that passageway; and that, “when I got in between these two engines, 1510 and 834” the “blow off cock” on engine 1510, without any warning being given, was opened and a fog of steam and hot water rolled up there ... I whirled to get out of it and stumbled on some coal and fell in the engine pit (under track 21 and back of engine 834) alighting on my right shoulder and head. When I fell into that pit it knocked me unconscious; everything went dark. I found myself in this pit trying to get up and in trying to get up I laid my hand on some chunks of coal in there. ... I felt the coal in the pit . . . There was a chunk of coal in that pit as big as my head . . . I kicked the coal into the pit. I heard it go in, heard it hit the wall and some of the chunks bursting. When I regained consciousness down in that pit I was sick, fainty, dizzy, . . . had pain in my head and right shoulder. I climbed out of there and went to the roundhouse office. I was staggering.” Plaintiff says that he was
The petition alleges, that as plaintiff, in the performance of his duties, attempted to pass down the walk or passageway between pits 20 and 21, it was dark; that said premises, walk and pits “were not lighted;” and that there was no guard rail about said pits; that the “walk was rough, icy, uneven, out of repair,” etc; that “when he reached a point on said walk aforesaid near to well” or pit 21 “great volumes of hot steam and vapor were suddenly ejected from an engine standing over one of said pits and that defendant, its agents, servants and employees negligently and carelessly caused and permitted a lump or lumps of coal to be and remain upon said walk and by reason of the aforesaid facts and conditions plaintiff was blinded and caused to slip, stumble and fall over the edge of and into said well or pit.” The petition then specifically charges as negligence; (1) failure to light the walk and pits; (2) causing and permitting hot steam and vapor to be ejected and escape; (3) causing and permitting coal “to be and remain at the place aforesaid;” (4) failure to have a guard rail about the pit; and (5) failure to
Our review of the action of the trial court in refusing the demurrer to the evidence is confined to a determination of whether there is substantial evidence to support the grounds of negligence submitted as a basis of recovery. We look not only to the evidence adduced by the plaintiff and the natural and reasonable inferences arising therefrom but also to any evidence on the part of the defendant that tends to corroborate or aid plaintiff‘s case. The rather full and detail statement of the evidence we have made, supra, would seem to make an extended analysis thereof here unnecessary and to demonstrate that the evidence was sufficient and of such a substantial character as to warrant the submission of either and both of the grounds of negligence submitted to the jury. But so strenuously does appellant press its demurrer we are impelled to further discuss the facts. First as to the discharge of the steam. It was customary and the company‘s instructions required that the engines maintained under steam in the terminal be “blown off” several times while in the terminal. Defendant‘s foreman said the instructions were that engines be “blown off” by the hostler, at certain points only in the yard “where there are seldom any employees” about, before they were taken across the turntable into the roundhouse or garden or when returned to the yard from the roundhouse or garden. Inferentially at least his testimony is to the effect that the “blowing off” of an engine in the garden, in the manner in which plaintiff states this engine was “blown off” would have been improper and contrary to the instructions. Plaintiff‘s testimony is that engines were “blown off” in the roundhouse and garden as well as in the yard and that the instructions and rules required that in doing so the engine be connected with the pipe in the pit into which the steam and hot water could be discharged and carried away but that engines were ofttimes “blown off” in the garden without making this connection. The evidence shows that this engine 1510 had been standing in the garden for more than three hours prior to the time plaintiff fell in the pit. Defendant‘s employees went upon this en-
We turn now to the sufficiency of the evidence to warrant the submission of negligence on the part of defendant in causing and permitting the lumps of coal, over or against which plaintiff stumbled, to be and remain in the passageway. It was the nondelegable, continuing duty of defendant to use ordinary care to provide and maintain a reasonably safe place for plaintiff to carry on his work. The alleged violation of that duty of the master is the real gist of this action. The presence of the coal in the passageway was accounted for by plaintiff‘s evidence. There was evidence from which the jury could find that defendant‘s employees in charge of maintaining continuous fires in the fifteen or more stoves left there some of the lumps or pieces of coal which they had thrown into the passageway in obtaining coal from the tenders of the coal burning engines. The act of these employees in this respect was that of the master. Defendant does not undertake to explain otherwise the presence of the coal in the passageway unless it had fallen there from the tender of a coal burning engine. In fact defendant merely denies that there was any coal in the passageway at the place where defendant says he stumbled and fell. Plaintiff testified that it was the duty of the fire builders to “come and look around” the “coal burner engines to see if any coal rolled off on the ground” and “clean it up.” Engine 834, a coal burning engine had been standing on track 21 for an hour and a half prior to the time defendant fell. Engine 1510, on track 20, it will be recalled, was an oil burning engine. If the coal in the passageway fell from the tender of the engine 834 when it was moved onto track 21 and placed over that pit at least an hour and a half had elapsed and the fire builder had evidently not inspected the space about the engine and had not cleaned up the coal as was his duty. But if the fire builders’ duty in this respect be considered merely incidental it must be remembered that plaintiff testified that defendant employed men whose duty it was to keep the passageways free of obstructions and “to follow those engines in there and keep that coal cleaned up.” Concerning this, however, defendant‘s foreman testified that defendant employed men who worked from eight a. m. to four-thirty p. m., and whose duty it was to “clean between every pit,” that is the passageways or walks and keep them clean of “trash, coal or anything.” The same type and character of work and engine movements went on continuously in the roundhouse and garden both day and night. As this ground of negligence was submitted to the jury by plaintiff‘s instructions the jury were required to find “that defendant, its agents, servants and employees were negligent and careless in placing and permitting to be placed and remain the lumps of coal referred to in the evidence
While discussing the sufficiency of the evidence to make a case for the jury, and in that connection, we will note appellant‘s contention that the trial court erred in refusing its Instruction D 4, directing a verdict for defendant on the theory that, as a matter of law, under the evidence, plaintiff assumed the risk of injury. Looking to the law of assumption of risk as stated by the Supreme Court of the United States it is said in Chesapeake & Ohio Railroad Co. v. De Atley, 241 U. S. 462, that it is not the duty of an employee “to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.” In Gila Valley, Globe & Northern Ry. Co. v. Hall, 232 U. S. 94, it is said: “The employee has a right to assume that his employer has exercised proper care with respect to providing a safe place to work” and it is there held and also in Chesapeake & Ohio Railroad Co. v. Proffitt, 241 U. S. 462, that the employee “is not to be treated as assuming a risk that is attributable to the employer‘s negligence until he becomes aware of it, or it is so plainly observable that he must be presumed to have known it.” The Federal rule of assumption of risk stated in Toledo & Western Railroad Co. v. Allen, 276 U. S. 165, is that, except as specified in Section 4 of the Employers’ Liability Act eliminating the defense in certain cases, “the employee assumes the ordinary risks of his employment and when obvious or fully known and appreciated by him the extra-
Appellant complains of plaintiff‘s Instruction 1, submitting in the conjunctive two alleged specific acts of negligence, i. e., the discharge of steam and the “placing and permitting . . . lumps of coal . . to be placed and remain at the place referred to in the evidence.” The instruction tells the jury that if they find “that as plaintiff approached said engine great volumes of vapor and steam were suddenly ejected from the engine . . . and the atmosphere thereabout became so thick and dense that plaintiff was blinded thereby and unable to see his whereabouts, if so, and that while plaintiff was in said steam and vapor as aforesaid and unable to see his way about he stumbled and fell over said lumps of coal . . . and that defendant, its agents, servants and employees were negligent and careless in causing and permitting said steam and vapor to be ejected and escape at said time and place and were negligent and careless in placing and permitting to be placed and remain the lumps of coal at the place referred to in the evidence, if so, and that plaintiff‘s working place was thereby rendered dangerous and not reasonably safe . . . then your verdict will be for plaintiff.” We have held that the evidence was such as to warrant the submission of both alleged acts of negligence. However, appellant argues that the jury might well have found that the discharge of steam under the circumstances was not negligence and that the court therefore erred in refusing its Instruction D 10, that if the jury found “that no steam negligently escaped from engine 1510 while plaintiff was between tracks 20 and 21 and immediately before he fell” the verdict “must be for defendant.” It seems readily apparent that by his Instruction 1 plaintiff assumed an extra or unnecessary burden and assuming that while the jury found and believed the steam was discharged at the time and place, as stated by plaintiff, the discharge thereof was not, under the circumstances, a negligent act, yet the jury was warranted in its finding against defendant on the ground that defendant negligently placed and permitted lumps of coal to be placed and remain at the place in the passageway where plaintiff in trying to avoid the steam and hot water stumbled against them and was thereby caused to fall into
Plaintiff‘s Instruction 3, relates to assumption of risk. It does not direct a verdict but fully and correctly states the applicable rules of law governing assumption of risk nor does appellant contend otherwise. But appellant criticises the statement therein that, “when plaintiff entered the service of defendant he had a right to assume that defendant would exercise ordinary care in the conduct of its business.” Appellant says by that language the instruction “assumed the existence of a fact the truth of which” should have been left to the determination of the jury. In reading the instruction as a whole we are not impressed with the argument that the language thus segregated and complained of could have influenced the jury to the defendant‘s prejudice nor do we think it can be said to assume as established a controverted issue of fact in the case. The cases cited by appellant have been examined. They are representative of that line of cases wherein the instruction clearly assumes the existence of some controverted and essential issue of fact.
Appellant assigns as error the refusal by the trial court of its Instruction D 14. The instruction in effect directs the jury that to find the defendant “guilty of negligence on account of the presence of said piece of coal” they “must find that it had been in that place for such a length of time that an ordinarily prudent person . . . would have known that it was there.” The instruction wholly ignores plaintiff‘s theory of negligence in respect to the coal and if given would have been in conflict with plaintiff‘s instruction correctly submitting his theory that the defendant‘s employees in the first instance placed or caused the coal to be and remain in the passageway rendering plaintiff‘s place of work unsafe and that in so doing defendant‘s employees were negligent.
Defendant offered but the trial court refused an accident instruction. Appellant claims error. Without further reviewing the evidence it suffices to say that we find no basis in the evidence for such an instruction. In ruling this assignment against appellant we are following, Hogan v. Kansas City Public Service Company, 322 Mo. 1103, 19 S. W. (2d) 707; Sloan v. Polar Wave Ice & Fuel Co., 323 Mo. 363, 19 S. W. (2d) 476; Wright v. Quattrochi, 330 Mo. 173, 49 S. W. (2d) 3; Mitchell v. Dyer (Mo.), 57 S. W. (2d) 1082; Brewer v. Silverstein (Mo.), 64 S. W. (2d) 289, and our recent
Defendant‘s general foreman, Garrison, testifying on direct examination stated, that he was in the office when plaintiff came there and “told me he had fallen in a pit and his right shoulder was injured;” that plaintiff said he fell into pit twenty-one; that “we took off his jumper and I had him work his arm. I wanted to ascertain whether or not his arm was broken. His clothing was dry.” Whereupon this question was propounded: “If a man had been close to an engine a short time before that and a blow-off cock had been opened and a great quantity of steam had been emitted from that engine sufficient to have enveloped him would that steam have been sufficient to wet his clothing?” Plaintiff‘s objection was sustained on the ground that the “matter was not a subject for expert” or opinion testimony. This ruling of the court is assigned as reversible error. We are inclined to the opinion that the trial court did not fall into error in ruling that the matter was not a proper subject for opinion testimony. The witness had stated that plaintiff‘s clothing was dry. If the jury saw fit to accept the statement of the witness in that regard the inference, favorable to defendant, arising therefrom is one which a jury could well make without the necessity of opinion evidence to assist them. In view of that situation even if it be conceded that defendant was entitled to have the witness tell the jury that in his opinion if a great quantity of steam had enveloped plaintiff immediately before he entered the office it would have “been sufficient to wet his clothing” the rejection of the testimony could hardly be deemed in itself of such a prejudicial nature and effect as to amount to reversible error.
The remaining assignments have to do with the instruction on the measure of damages and the amount of the verdict and therefore require that we examine the evidence relating to the injuries sustained: We have stated that plaintiff testified that upon regaining consciousness he climbed out of the pit and went to the office. Continuing a review of his testimony concerning his injuries and subsequent pain and suffering he states that during the time he was in the office (about 20 minutes) awaiting arrangements to take him to his home he suffered pain in his back, head and right shoulder; that shortly after he reached his home Dr. West arrived there; that Dr. West manipulated his “crippled arm” which was “very painful” and gave him “a bottle of rubbing alcohol” with directions to “bathe the arm with alcohol;” that he continued to suffer pain in the shoulder and arm; that “it seemed like a heavy weight was pulling down on my arm” and “my arm felt numb and hurt me in the shoulder;” that he couldn‘t “try to use” his arm; that about a week passed before he again consulted a doctor when he called on Dr. West but Dr. West “did not give me any treatment or instructions
“Q. What have you to say as to the permanency of the conditions which you have testified to? A. This condition has existed about a year; there is a history of becoming worse. I don‘t see, in my opinion, why it shouldn‘t be permanent.
“Q. In your opinion is that arm now capable of any use? A. Well he can‘t use it:
“Q. And you would then say it is useless? A. It is at present so far as he is concerned.”
Appellant says the trial court erred in giving plaintiff‘s instruction on the measure of damages as the instruction authorized the assessment of damages for permanent injury when “there was no evidence upon which to base a finding of permanent injury.” The quoted excerpt from the testimony of Dr. DeTar, taken with the medical testimony on the part of plaintiff as a whole, afforded evidence tending to show that the conditions which the doctors found, and attributed to the injury, were of a permanent character. Too Dr. Hazel‘s testimony is susceptible of the construction that in his opinion such conditions could not be remedied. The assignment must therefore be ruled against appellant.
It is contended, however, that the verdict of $8000 in favor of plaintiff is, under the facts, excessive. Plaintiff was thirty-eight years of age at the time of the injury. He was earning $5.63 for each working shift of eight hours. Though he stated he earned on an average of $150 per month it developed upon cross-examination that he had not earned as much as $150 per month during any month of the preceding year and the amount thereof was left uncertain. The evidence as to pain in the back or a back injury is very unsatisfactory. It does not appear that plaintiff ever complained of a back injury to either Dr. West or Dr. Hazel, the two doctors who treated him nor that either doctor treated him for such an injury or found evidence thereof in their examinations of plaintiff nor do they, or Dr. DeTar, refer to a back injury in their testimony. The evidence as to the extent to which plaintiff is able to “grip” objects or use his right hand, i. e., the strength of that hand, is confined to what plaintiff says about that. His medical witnesses admittedly did not, or could not, determine that other than as such condition was stated to them by plaintiff. There is no evidence that the fingers of that hand are stiff or that the movement thereof is other than normal and natural. The most, of a positive character, that the medical testimony does show is that he is suffering from what the doctors call “subdeltoid bursitis” causing a stiffness in the shoulder joint and “a marked limitation of motion,” in all directions, of the arm and shoulder, no opinion as to the degree or per cent thereof being stated, and that such condition is in the opinion of plain-
If therefore plaintiff will within ten days enter a remittitur of $3000 the judgment will stand affirmed for $5000 as of date of the original judgment; otherwise the judgment will stand reversed and the cause remanded for a new trial. Sturgis and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.