Hawkins v. Saint Louis & San Francisco Railroad

174 S.W. 129, 189 Mo. App. 201, 1915 Mo. App. LEXIS 161

• Court: Missouri Court of Appeals
• Decided: March 12, 1915
• Status: Published

Opinions

OPINION.

FARRINGTON, J.

Appellant contends that plaintiff was not entitled to have the jury pass on the case as to either of the two specifications of negligence, and that therefore its peremptory instruction should have been given. This has necessitated a review of the evidence, considered in the most favorable aspect to plaintiff. [Myers v. Pittsburgh Coal Co., 233 U. S. 184, 58 L. Ed. 906, l. c. 911.]

Briefly stated, the plaintiff’s case is as follows: He was the night foreman at defendant’s roundhouse and it was his duty to merely supervise and superintend such repairs as were necessary to get the “live” engines in shape for their run. Engines that were out of commission and required work other than that incidental to preparing them for service did not come under his supervision; such work was carried on in the daytime and occasionally the daymen would work overtime for a part of the night, but such men would not be subject to plaintiff’s control unless he was given special instructions with reference to their work. Plaintiff’s testimony is that it was not his duty to inspect the floors and stalls for the purpose of ascertaining that the daymen or the night men had complied with the rule posted in the roundhouse by, the defendant, that all workmen should put away their tools when they stopped work. The defendant did employ two sweepers whose duty it was to remain in the roundhouse something like an hour after the day shift had left and whose duty it was during their hours to sweep out and pick up anything left on the floor that they should find. As to the engine in stall fourteen, the one in which plaintiff was injured, neither the plaintiff nor his men had any duties to perform about it except to see that it was fired and taken out of the stall and prepared with water and coal; that is, he had no duties with respect to that engine that required him to go into that stall for any purpose other than the purpose for which he did go in when he was injured. There is evidence that work had been done by the daymen on the engine in stall thirteen and that a jack had been in use by the daymen in working on that engine and that the machinist had a “green” helper who was a new man. Plaintiff testified that he worked under the general roundhouse foreman, Burke, and that Burke had not. assigned him any duty with reference to going around to see whether workmen had put up their tools and had not furnished him any men to see that it was done.

We must therefore hold that defendant’s instruction in the nature of a demurrer to the evidence was properly overruled because the testimony fails to show, ás defendant contends, that the knoweldge of the presence of the jack negligently being left on the floor must be conveyed to the company through the plaintiff and that it was his duty to inspect and see that the floor at this place was clear of such obstructions.

Other facts material to the discussion will appear throughout the opinion.

With this statement of the pleadings and the evidence in mind, let us examine the sections of 'the Federal Employers’ Liability Act which govern this case.

Section 1 of the act provides, among other things, that every common carrier by railroad while engaging in commerce between any of the States shall be liable in damages to any person suffering injury while he is -employed by such carrier in such commerce for such injury resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due td its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other -equipment. Section 3 provides that in actions brought thereunder the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. Section 4 deals with the defense of assumption of risk in such a way as to show that the defense is still good except in certain cases, and this case does not fall within the exception.

“It is settled that since Congress, by the Act of 1908, took possession of the field of the employer’s liability to employees in interstate transportation by rail, all State laws upon the subject are superseded.” [Seaboard A. L. R. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062.] Therefore, the decisions of the Federal courts with respect to the construction and operation of the act control. [Sims v. Railroad, 177 Mo. App. l. c. 25, 163 S. W. 275; McElvain v. Railroad, 176 Mo. App. l. c. 382, 158 S. W. 464.]

Appellant makes the contention that under such decisions “the servant assumes the risks arising out of a defect in the place at which he works attributable to his employer’s negligence, provided he knows (or is presumed from its obviousness to have known) of the defect, and also knows that it endangers his safety (or if an ordinarily prudent person under the circumstances would realize that it endangered his safety).” As a part of this contention it is argued that plaintiff was not entitled to go to the jury as to the specification of negligence that defendant failed to properly light the roundhouse because he assumed the risk of that negligence. For the purpose of such contention defendant must be held to be admitting that it was negligent and not to be claiming that plaintiff failed to make a prima-facie showing of negligence, but to be claiming that its affirmative defense of assumption of risk was so abundantly established that the court should have directed a verdict for it, thus declaring that defendant had amply sustained the burden of proving that affirmative defense and that plaintiff had not offered sufficient evidence in rebuttal of such defense to make an issue of fact as to which reasonable minds might differ.

The rule of the Federal courts as to assumption of risk is stated in the case of Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 93, 58 L. Ed. 521, l. c. 524: “ ‘The true test is not in the exercise of ordinary care to discover dangers, by the employee, but whether the defect is known or plainly observable by him. An employee is not charged by law with the assumption of a risk arising out of defective appliances provided by .his employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and comprehend the dangers incident to the nse of such appliances. ’ This, we think, was a correct instruction under the circumstances' of the case. An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. But the employee has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. i Moreover, in order to charge an employee with the assumption of a risk attributable to a defect due to the employer’s negligence it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it. ”

It would seem that to one who had read the evidence in this record, in the manner in which one must under the decisions read it when determining whether a peremptory instruction should have been given for defendant, the bare statement of the rule just quoted would be sufficient to overcome appellant’s contention. It is neither pleaded nor proven that plaintiff was aware that the jack had been left on the floor of this stall in dangerous proximity to the engine or that it was his duty to be aware of such fact; and the jack was not so plainly observable that he may be presumed to have known of its presence on the floor. The hostler, .Clark, went entirely around the engine with one of the lanterns provided by defendant and did not see it. The workmen who went to the stall immediately after the injury with a torch had to hunt for it. There is no showing whatever that plaintiff ‘ ‘ appreciated the danger.” "We cannot say he assumed the risk of falling •over a screw-jack, which was negligently left on the floor of the stall by some employee of the defendant, by proving he knew there was no light provided at the front of the stall. The trouble is, he did not know the jach was there. The absence of light in the stall was known to plaintiff, but that in itself involved only ordinary risks; added to this was a positive negligent act •on the part of the defendant.

In the ease of Seaboard A. L. Ry. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, l. c. 1070, after stating that the act recognizes the distinction between contributory negligence and assumption of risk, the court said: £ The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee ■, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as' ordinarily prudent employees in similar circumstances would use. On .the other hand, the assumption ■of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part ■of the employee. The risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workman — danger that must be and is •confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless, defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.” That case was reversed because the trial court and Supreme Court of North Carolina held the defendant conclusively guilty of negligence when it was shown to have failed in some-duty prescribed by the State statute which was not prescribed by the Federal act; yet there was evidence in the case that the glass that burst could have been en: tirely cut off from the pressure and the engine could still have been safely operated by the cocks provided to show the quantity of water; again, that the glass, would fly in the engineer’s face if it did burst was the-reasonable and natural and normal result which could and must have been anticipated. The case we have to-decide is taken bodily from that rule because it would not be reasonably anticipated by anyone — although the-place was dark- — that he would stumble over a jack negligently left on the floor of the stall in violation of' the posted rule. What the Supreme Court of the United States held on the question of a servant assuming the-risk of the master’s negligence must be deduced not only from the general statements on the questions involved in the case last cited, wherein the principal question determined was on the defendant’s negligence but we must also read what the same court said on the-question in the case of Gila Valley, G. & N. Ry. Co. v. Hall, supra. We understand the law to be as declared in these two cases that the error alleged in the instructions in our case on assumption of risk and contributory negligence becomes nonprejudicial under the facts, adduced at the trial.

The Supreme Court of our own State has lately rendered an opinion in the case of Fish v. Chicago, R. I. & P. Ry. Co., 172 S. W. 340, wherein the questions. of assumption of risk and contributory negligence are discussed and considered by the court after having referred to the case of Seaboard A. L. Ry. Co. v. Horton, supra, and the Fish case, which is the last decision of our Supreme Court on the question, is positive authority for' the correctness of the instructions on contributory negligence and assumption of risk in our case. Besides, we find nothing in the Federal cases or in the Federal act itself that undertakes to say that the various State courts are to change their views of what the common law is relative to assumption of risk and contributory negligence; indeed, it would seem that the Federal courts leave it to the State tribunals to determine these questions. [Thornton on The Federal Employers’ Liability and Safety Appliance Acts (2 Ed.), pp. 4-5, note.] As the Constitution of the United States requires that a bankruptcy act passed by Congress must be a uniform law, it is by no means uniform in its application on many questions arising where the law is placed in operation. For instance, it leaves the State authorities to say what exemptions shall be set aside to the bankrupt and it leaves it to them to say what conveyances are fraudulent. In both these particulars, probably no two States have identically the same laws, in force. Tet the bankruptcy courts uniformly enforce the laws of the various States on these questions. There are many States which hold that a servant does assume the risk of his master’s negligence, whereas Missouri and other States prefer to hold that the servant never assumes the risk of such negligence and' work the justice of the cases out on the theory of contributory negligence. And, as before stated, we find nothing in the law that requires all States to apply the common law on contributory negligence and assumption of risk exactly the same. Congress has seen fit to pass a Federal Employers ’ Liability Act and use therein certain well-known terms having a common-law meaning, such as ‘ ‘ contributory negligence, ’ ’ and ‘ ‘ assumption of risk, ’ ’ and has not undertaken to define them. It therefore must follow that Congress intended for the act, when •called into operation, to be applied according to the construction of those common-law terms by the various •State courts. In discussing the case of Seaboard A. L. Ry. Co. v. Horton, supra, our Supreme Court in the •case of Fish v. Chicago, R. I. & P. Ry. Co., 172 S. W. 340, said: “The effect'of that decision and of the act •construed therein, and of the previous decision of the Supreme Court devolving concurrent jurisdiction upon the courts of the several States to enforce the provisions of said act, is to require them, in passing on the defense of assumption of risk, to apply as a standard the common-law rule on that subject. This points a plain pathway — that, of the common law as adopted, interpreted, expounded, and enforced in the respective •States. ’ ’

As to the particular facts of the case before us, the instructions complained of do not contain reversible error under the law as declared by the latest cases •decided by the Supreme Court of the United States on the subject; and the instructions clearly declare the law correctly under the rule announced in the Fish case, supra, decided by the Supreme Court of our own State, wherein it was dealing directly with the question in the light of the latest decisions of the Supreme Court of the United States.

"We do not agree with appellant that the negligence of one of defendant’s employees in leaving the jack at the place where plaintiff -stepped on it was such a danger as was “normally and necessarily incident to” plaintiff’s occupation; Plaintiff did not assume the risk that might befall him because of the presence of the jack on the floor because he did not know that defendant had been negligent in that regard.

The ordinary risks of going into this stall which was insufficiently lighted without a lantern might be such as these: The track might extend an inch or two above the floor and trip an employee; or, he might walk too close to the wall where jacks and tools not in use-were supposed to be kept and stumble over them; or, he might walk too close to the engine and come in contact with the steps or some other projection; or, he might fall in one of the engine pits. But this case is. different. Plaintiff says it was not his duty to look out, for tools on the floor of the stalls and that he' was not. looking out for obstacles when he went into this stall. He says there was a rule posted to the effect that workmen must put up their tools when through with them and that he relied on its observance. Defendant contends that a demurrer to plaintiff’s evidence should have been given, and by doing so admits all reasonable deductions from plaintiff’s evidence. This case is not like that of Cincinnati, N. O. & R. Ry. Co. v. Swann’s Adm’x (Ky.), 169 S. W. 886, for in that case it was. one of Swann’s duties, as foreman of a gang of men, to look out for trains, and the defendant railroad — his. employer — did not owe him any of the duties the breach of which was assigned as negligence.

If it was negligence not to have a light between stalls thirteen and fourteen, as plaintiff alleged, and plaintiff knew of that negligence, yet his knowledge of such negligence would not be an assumption of the risk of falling over a jack negligently left on the floor of stall fourteen by defendant concerning which plaintiff had no knowledge or information.

The condition of this stall as to light -was the same as on other occasions — a condition which was open and obvious to the plaintiff; but, if it be said that he should have carried his lantern, the answer is that his failure to do so was no more than contributory negligence because this is not one of those cases where darkness is the sole cause of the injury, and under the Federal act contributory negligence does not bar recovery; and the trial court would not have been justified in giving-■a peremptory instruction against plaintiff because of it.

It is true, the employer in this case was not an insurer of the safety of the place. Liability, under the act, must be based on negligence. [Seaboard A. L. Ry. Co. v. Horton, supra.] Now technically speaking there is no Federal law of negligence; the Federal courts apply the law of the State where the injury occurs. [Thornton on The Federal Employers Liability and Safety Appliance Acts (2 Ed.), pp. 4-5, note.] In Missouri, it is the duty of the employer to exercise ordinary care to furnish his employee a reasonably safe place in which to do the work required of him, regard being had for the nature and character of the work. [Rowden v. Daniell, 151 Mo. App. l. c. 24, 132 S. W. 23.] And the courts hold that this duty is a continuing one. [Myers v. Pittsburgh Coal Co., 233 U. S. 184, 58 L. Ed. l. c. 910.] If there was negligence on the part of the employer in the case before us, it was in failing to exercise reasonable care to discover and rectify a dangerous condition produced by the wrong of one of its employees. The plaintiff testified that the day foreman gave him a line-up on the engine in stall fourteen to the effect that it was all right; that none of his men on the night shift did any work on the engines in stalls thirteen and fourteen except to build a fire in the engine in fourteen which did not require the use of a jack; and finally, that the machinist and helper who worked overtime the night before from the preceding day shift worked in stall twelve which was two stalls removed from fourteen. It is a reasonable inference, then, that the jack was left on the floor of the stall by some employee during the day preceding the injury, at which time the defendant saw fit to have two men employed for the express purpose of picking up tools and keeping the floors clear, besides having those two men supervised in this work, first, by the day foreman, Ryan, and also by the general roundhouse foreman, Burke. The bulletin posted in the roundhouse requiring workmen to put away tools when they were through with them shows what the master thought of the necessity of keeping the floor of the stalls clear. As said in the case of Johnson v. The Kansas City Bolt and Nut Co., 172 Mo. App. l. c. 218, 219, 157 S. W. 665: “A master does not discharge his full duty towards his servant by merely prescribing a method of work which if properly performed by other servants would maintain a reasonably safe place for such servant. The duties of mastership include those of reasonable supervision and inspection to see that the work is being properly done and plaintiff was entitled to the protection of the proper performance of that duty. ... It was a question of fact for the jury to determine as to whether or not the obstruction had remained in the passageway a sufficient time for.defendant in the exercise of reasonable care to have discovered and removed it before the injury. Reasonable care means care commensurate with the dangers of the employment. What would be reasonable care in one case might be gross negligence in another. Taking all of the circumstances of the present case into consideration we hold that the jury were justified in concluding that it was negilgence of defendant to allow a dangerous obstruction to remain in the passageway from one working day to another. ’ ’ Taking the plaintiff’s evidence as true that it was not his duty to see that tools were not scattered around the ■stalls and that he was not expected to be on the lookout for such obstacles on the floor as he knew of the master’s posted rule and was not bound to presume it would be violated, in connection with the inference fairly deducible from the evidence that it was an employee of the day shift who committed the act of negligence, and the fact that defendant had two sweepers whose duty it was before plaintiff went on duty to pick up jacks and other tools negligently left on the floor, must we say that it is not even a jury question whether defendant was gnilty of actionable negligence in failing to discover tbe dangerous condition merely because defendant did not employ any one at night to be its vice-principal in this respect?( If so, a specific for liability for injuires to employees has been discovered. Tbe master cannot thus wash his bands of responsibility.. Tbe evidence for tbe plaintiff, considered in tbe aspect most favorable to plaintiff, does not show that he-was defendant’s vice-principal for tbe purpose of inspecting stalls for tools that may have been left by a. day employee in violation of tbe rule. A reasonable-man might say it was tbe duty of tbe general foreman of tbe roundhouse to look after such matters for the-defendant, as both Ryan, tbe day foimman, and plaintiff, tbe night foreman, were subject to bis orders; or-be might say it was tbe duty of tbe two men hired by defendant for tbe express purpose of cleaning up after tbe workmen — and according to tbe testimony given at tbe trial these two men remained on duty for perhaps, an hour after tbe day shift quit. If defendant did not. see fit to provide men at night to see to it that the day shift bad put up their tools, it must suffer tbe consequences; at least, it must be willing to introduce its proof and let tbe jury say whether it bad fulfilled its. obligation to its employee or whether if bad shown that, tbe employee was its vice-principal in tbe particular case. We think it was a jury question whether tbe jack bad remained on tbe floor of tbe stall a sufficient time-for defendant in tbe exercise of reasonable care to have-discovered and removed it before tbe time tbe injury occurred.

In view of tbe fact that respondent in bis brief' admits that recovery was predicated on tbe theory that, tbe jack bad been negligently left on tbe floor of the stall for a sufficient length of time — to-wit, by a workman of tbe preceding day shift — to fasten constructive knowledge of its presence at that place on tbe defendant, and preferring to pass upon this appeal on. the same theory on which the case was tried in the circuit court, we will not go into the question as to whether or not the defendant under the terms of the Federal act was entitled to a reasonable time within which to discover the jack on the floor of the stall and remove it on the theory that the negligence of the defendant was in reality the negligence of a fellow-servant of the plaintiff. The first section of the act does not relieve the defendant of the consequences of the negligence of an employee who is a fellow-servant of one injured. There is nothing in this case requiring us to construe the Federal Employers’ Liability Act with reference to whether or not under the wording of the act an employer governed by it is entitled to a reasonable time within which to discover and rectify a dangerous condition brought about by the negligence of any of its officers, agents or employees. The act is couched in clear and unambiguous language and speaks for itself, and a construction thereof will be timely when a case is presented under the act which was tried on a theory that calls for a construction of it. : We have held that the court properly overruled the demurrer to the evidence under the theory on which the case was presented to it. And, as the question above mentioned (concerning a possible construction of the Federal act) is not raised by the appellant, the party against whom we are ruling, and as the discussion of the questions which are raised and pressed upon us for decision has called for an opinion of considerable length, we do not feel disposed to take up and decide this question raised for the first time by respondent after the case reached this court.

Appellant complains of plaintiff’s first instruction for the reason that it entirely ignores the defense of assumption of risk. It does — except that it concluded by referring to “the next succeeding instruction and the other instructions given.” The “next succeeding instruction” makes no reference to the defense of assumption of risk, but it concludes: “then you are warranted in finding the issues for plaintiff under this and the other instructions herein. ’ ’ The very next instruction deals exclusively with the subject of assumed risk. It is true that the main instruction should properly include all the defenses and cover the whole case; however, as the one given in this case did not do so, since defendant did not offer a proper instruction covering the whole case, it is not in position to complain. There is no principle better settled than that instructions which are good as far as they go, but which do not cover the whole case, amount in civil cases only to non-direction, and not to error, and it is the duty of the other party to ask for proper instructions. [Moore v. Railway Co., 136 Mo. App. 210, 116 S. W. 440.] And if he does not do so he cannot complain that they did not cover the whole case. [First National Bank of Mexico v. Ragsdale, 171 Mo. 169, 71 S. W. 178.]

Appellant’s contention that the court erred in giving plaintiff’s second instruction is disposed of by what has been said thus far in this opinion.

It is contended that the court erred in giving plaintiff’s third instruction, which is as follows: “The court instructs the jury that a servant assumes the ordinary risks incident to his employment but does not assume the risks caused by the negligence of the master, or his failure to perform his duties to his employees, and if in this case you should find that the defendant or any of its officers, agents or employees were negligent in whole or in part under the requirements set out in these instructions, and that such negligence, if any, directly caused the injury to plaintiff, then plaintiff did not assume the risks arising from such negligence, if any.” Under the ruling in the case of Fish v. Chicago, R. I. & P. Ry. Co., supra, in which our Supreme Court was dealing with the Federal Employers’ Liability Act, it is clear that the foregoing instruction correctly declared the law applicable to this case.

Appellant contends that the court should have given its requested instruction “I” — which was in fact a peremptory instruction to find that plaintiff was guilty of contributory negligence in proceeding in the manner and at the time he did without a lantern. "We think that under the evidence it would have been improper to have given that instruction. In view of the fact that it was ‘ ‘ daylight enough outside to see without a lantern” — and the fact that the lanterns were not coal oil lamps and did not give a bright light and were big at the bottom so as to exclude the light somewhat from the floor, and, according to one witness, were not used to work with but merely to keep people from running over each other — and the fact that Clark, the hostler, went entirely around the engine with his lantern and did not see the jack — and the fact that the jack was black like the floor so that after the injury, workmen had to hunt for it with a torch — and the fact that plaintiff did not know of its presence on the floor —we think the question of contributory negligence was one for the jury.

Appellant’s contention that the court erred in refusing its instruction “ J” telling the jury that if plaintiff was furnished with a lantern but proceeded in the dark without it he assumed the risk of so doing." As we have stated, this is not a case where the darkness was the sole cause of the injury. Plaintiff did not know of the presence of the thing on the floor of the stall that was to be the cause of his injury, and it is settled law that a servant does not assume the risk of that Avhich he does not know of unless it is obvious, etc.

Appellant’s instruction “K” which was also refused covered practically the same field as that traversed by its instruction “J” using different language, concluding that if plaintiff did not carry his lantern then the failure of the defendant to provide a station■ary light was not the proximate canse of the injury and plaintiff could not recover. All that appellant has io say as to the refusal of this instruction is: “Under the evidence in this case said instruction was a proper declaration of the law of assumed risk.” As a matter of fact — and this is a sufficient answer to appellant’s contention — the instruction in no way touches the question of assumption of risk.

Other contentions made by appellant have been examined and found to be without merit.

The question of contributory negligence was touched upon in four of the instructions which were given and defendant’s rights as to this defense were amply protected.

Upon the whole record the judgment should be affirmed. It is so ordered.

Robertson, P. J., and Sturgis, J., concur, the latter in' a separate opinion.