Opinion
No. 41923.
October 8, 1951.
Action for wrongful death under the Federal Employers' Liability Act. A hostler was fatally injured when he fell from the boiler of an engine used to heat a roundhouse while attempting to connect a steam pipe. There was a submissible case that the deceased was acting within the scope of his employment; that he was provided with an unsafe place to work; and that he actually fell from the boiler. Roundhouse employees were qualified to testify as to the dangerous location of the steam pipe connection. Plaintiff did not improperly impeach her own witness. An instruction on the duty to furnish a safe place to work was not erroneous. Instructions were properly refused which involved assumption of risk and contributory negligence.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Right of Jury to Draw Inferences. Under the Federal Employers' Liability Act a jury has the right to make inferences even though circumstantial evidence gives equal support to inconsistent inferences.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Connecting Steam Pipe: Scope of Employment. Although the deceased was a hostler and not a steam fitter, he was acting within the scope of his employment when he was fatally injured while attempting to connect a steam pipe to a locomotive.
3. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Evidence: Witnesses: Expert Witnesses Not Required: Unsafe Place to Work. The employees in the roundhouse were qualified to testify that a steam pipe which had to be frequently connected and disconnected would have been safer if the connection had been near the floor instead of on top of the boiler of an engine.
4. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Unsafe Place to Work: Submissible Case. There was a submissible case that the top of the engine boiler where the steam pipe connection had to be made was not a safe place to work.
5. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Fall from Boiler of Engine: Circumstantial Evidence Sufficient. There was sufficient circumstantial evidence that the deceased hostler fell from the top of the boiler of an engine while attempting to connect a steam pipe.
6. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Instruction Not Erroneous. An instruction that it was the duty of defendant under the Federal Employers' Liability Act to furnish its employees with a reasonably safe place to work was not erroneous.
7. EVIDENCE: Witnesses: Own Witness Not Improperly Impeached. Plaintiff was not improperly impeaching her own witness by interrogating the witness with regard to a prior written statement which was contrary to unfavorable testimony given by the witness.
8. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Instructions Properly Refused. Instructions which involved assumption of risk and contributory negligence were properly refused.
Appeal from Jackson Circuit Court: Hon John R. James, Judge.
AFFIRMED.
Charles M. Miller for appellant.
(1) There is no evidence that Mr. Malone fell from the top of the engine. Such is mere conjecture. No one saw him fall or knows the cause for his death. New York Central R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198: Chicago, M. St. P. Ry. v. Coogan, 271 U.S. 472, 46 S.Ct. 564; Trust Co. v. Penn. Ry. Co., 165 F.2d 806; Southern Pac. Ry. Co. v. Johnson, 69 F. 559; Reidhead v. Skagit County, 33 Wash, 174, 73 P. 118; Borden v. D.L. W.R. Co., 131 N.Y. 671, 30 N.E. 586. (2) Even had the evidence disclosed that Mr. Malone fell while in line of duty from the top of the engine at the steam dome, there is no evidence showing the fall was the result of any actionable negligence of defendant. Southern Pac. Co. v. Johnson, 69 F. 559; B. O. v. Groeger, 266 U.S. 526, 45 S.Ct. 169; Morton v. Alton R. Co., 118 S.W.2d 59; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Wendall v. Alton R. Co., 100 Mo. App. 556, 75 S.W. 689. (3) The first paragraph of Instruction 1, was too broad and gave the jury a misunderstanding as to the application of the rule of law regarding a reasonably safe place to work under the Federal Employers' Liability Act and was prejudicial to defendant. (4) The instruction improperly submitted to the jury whether or not the defendant was negligent in the alleged failure to furnish "a suitable or adequate ladder, platform or device for reaching the steam connection above the dome of the engine, because there was no ground or evidence to justify the same. Morton v. Alton R. Co., 118 S.W.2d 59. (5) The instruction improperly submitted to the jury whether or not the defendant was negligent in failing to so construct the appliances so that the overhead pipe could be connected and disconnected from the ground or floor level without the necessity of getting upon the engine, because there was no ground or evidence upon which to justify the same. Morton v. Alton R. Co., 118 S.W.2d 59; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Wendall v. Alton R. Co., 100 Mo. App. 556, 75 S.W. 689. (6) The instruction improperly submitted to the jury whether or not the appliances furnished for disconnecting the steam pipe and reconnecting it constituted a reasonably safe place to work, and if so the defendant was guilty of negligence, for the reason there was no ground or evidence to justify such. Morton v. Alton R. Co., 118 S.W.2d 59; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Wendall v. Alton R. Co., 100 Mo. App. 556, 75 S.W. 689. (7) Defendants' refused Instructions A to F, inclusive, properly declared the law as applicable to the case. See cases cited under (6) above. (8) The trial court erred in refusing defendant's requested Instruction L and further erred in refusing defendant's requested Instruction K for the reason said instructions properly declared the law as applicable to this case, if the case was one for a jury. Instruction L properly declared the law, because if the connection and disconnection of the steam pipes in question could have been performed in safety by one exercising reasonable care in performing such work, then the defendant could not be guilty of negligence with respect to the method of connecting the steam pipes. Morton v. Alton R. Co., 118 S.W.2d 59; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Wendall v. Alton R. Co., 100 Mo. App. 556, 75 S.W. 689. (9) Instruction K, properly declared the law, because there was no duty to furnish a safe place to work if the unsafeness was inherent in the work itself. Morton v. Alton R. Co., 118 S.W.2d 59; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Wendall v. Alton R. Co., 100 Mo. App. 556, 75 S.W. 689. (10) The trial court erred in permitting the plaintiff, over the objections of defendants, to impeach his own witness, Wm. J. Narron, by offering in evidence a signed statement by Narron, taken by counsel for plaintiff, being Exhibit 3. Woefle v. Connecticut Mut. Life Ins. Co., 234 Mo. App. 135, 112 S.W.2d 865. (11) The trial court erred in permitting plaintiff's witnesses, F.B. McKenzie and Harry Montgomery, to testify over the objections of defendant that the steam connection could have been made so as to be connected and disconnected at the ground or floor level. This involved a mechanical problem or question, and these witnesses not being mechanical engineers or having had any experience in such matters were not qualified to give an opinion or conclusion on such a matter with respect to whether such connection or disconnection could be made so as to be operative at the ground or floor level, avoiding getting on the engine to do so, and further such being an engineering problem or question was not a matter for the varied judgment of juries. B. O.R. Co. v. Groeger, 266 U.S. 526, 40 S.Ct. 169. (12) The bald statement of these two witnesses giving their conclusion that it could be done and not describing how it could be done did not furnish evidence upon which the jury could make a finding on this alleged issue and was incompetent. Morton v. Alton R. Co., 118 S.W.2d 58; Schaum v. S.W. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Wendall v. Alton R. Co., 100 Mo. App. 556, 75 S.W. 689; B. O.R. Co. v. Groeger, 266 U.S. 526, 40 S.Ct. 169. (13) Defendant contends there was no evidence with respect to what part of the engine or tender he fell from, if he did fall, Malone being "last seen before his fatal injury standing on the water tender and facing toward the engine," and to permit the jury to find that he fell from the top of the boiler of the engine whilst attempting to connect the steam pipe was the merest conjecture and speculation. Bennett v. Equipment Co., 214 S.W. 244; Weber v. Valier Spies Milling Co., 242 S.W. 985; Harper v. St. Louis Merchants' Bridge Term. Co., 187 Mo. l.c. 586, 86 S.W. 102; Watkins v. Bird-Sykes-Bunker Co., 332 Mo. 830, 16 S.W.2d 38; Webster v. Finance Co., 355 Mo. 193, 195 S.W.2d 509; State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582; Robinson v. Chicago E.I. Ry. Co., 334 Mo. 81, 64 S.W.2d 660, certiorari denied 54 S.Ct. 558, 291 U.S. 682; Brooklyn Natl. League v. Pasqual, 66 F. Supp. 117; Trust Co., Admrx., v. Erie R. Co., 165 F.2d 806, certiorari denied 334 U.S. 845, 68 S.Ct. 1513; Moore v. C. O. Ry. Co., 71 S.Ct. 428. (14) The divisional opinion further says, "But his position when found and the fact that his fall was such as to quickly render him unconscious would tend to make it more probable he fell from some upper part of the engine. It is true the running board and handrail, as provided, seem adequate for the use of employees in the ordinary servicing and repair of the ordinary engine," and thus the jury and court reach a verdict and judgment by weighing probabilities when there is no evidence as to what part of the engine or tender he fell from, if he did so fall, contrary to the well settled rule and law that a jury may not base a "verdict upon what facts may be more probable, if they cannot determine what facts are true." Lampe v. Franklin American Trust Co., 339 Mo. 361, 107 A.L.R. 465, 96 S.W.2d 710; Weber v. Valier Spies Milling Co., 242 S.W. 985; Byerly v. Light, Power Ice Co., 130 Mo. App. l.c. 603, 109 S.W. 1067; State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582. (15) The burden of proof was upon the plaintiff to prove with reasonable certainty that Malone fell from the top of the boiler of the engine whilst attempting to connect the steam pipe near the top of the dome, and that such was the result of negligence of the defendant, it being admitted in the divisional opinion there were other ways he could have come to his death, to-wit, falling from the tender, the cab or run board of the engine. In other words, the law requires reasonable certainty when the defendant would not be liable for one or any of the "other ways." The divisional opinion shows there could be no finding by the jury with reasonable certainty. Weber v. Valier Spies Milling Co., 242 S.W. 985; Byerly v. Light, Power Ice Co., 130 Mo. App. l.c. 603, 109 S.W. 1067. (16) No inference may be made unless based upon a factual foundation, nor may inference be predicated upon inference. The divisional opinion shows there could be no factual foundation for a reasonable inference in support of the jury verdict. Hamilton v. Railway Co., 250 Mo. 715, 157 S.W. 622; Swearingen v. Railway Co., 221 Mo. 644, 120 S.W. 773; Yarnell v. Railway Co., 113 Mo. 570, 21 S.W. 1, 18 L.R.A. 599.
Ben W. Swofford, Robert A. Schroeder and Lee E. Weeks for respondent; Swofford, Schroeder Shankland and Stanley, Stanley, Schroeder, Weeks Thomas of counsel.
(1) The trial court properly refused defendant's motion for a directed verdict at the close of all the evidence and properly refused to enter judgment for defendant and grant a new trial since plaintiff made a submissible case under the Federal Employers' Liability Act. 45 U.S.C.A., Secs. 51, 53, 54; Bailey, Admrx., v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. (2) There was ample creditable evidence adduced at the trial from which the jury could find that Malone, the deceased, while in the line of his duty fell from Engine No. 32 and such finding was not based upon conjecture and guess so as to require that its verdict be disturbed. Lavender, Admr., v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Chicago, M. St. P. Ry. Co. v. Kulp, 102 F.2d 352; Philadelphia R. Ry. Co. v. Marland, 239 F. 1; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Tennant v. Peoria P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. (3) The evidence showed that defendant was guilty of actionable negligence under the provisions of the Federal Employers' Liability Act in not using ordinary care to furnish plaintiff a reasonably safe place in which to work and reasonable safe methods and appliances. Bailey, Admrx., v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Lavender, Admr., v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Lehigh Valley Ry. Co. v. Scanlon, 259 F. 137; Brown v. Western Ry. of Alabama, 338 U.S. 294, 70 S.Ct. 105; Tatum v. Gulf, M. O. Ry. Co., 359 Mo. 709, 223 S.W.2d 418; Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598; Francis v. Terminal R. Assn. of St. Louis, 354 Mo. 1232, 193 S.W.2d 909. (4) The contention that Malone was not engaged in work regularly assigned to him and the contention that the union contracts gave this work to crafts other than hostlers does not relieve defendant from responsibility under the act in view of the evidence of custom, practice and consent that hostlers do this work. Wiggins v. Powell, 119 F.2d 751; Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 403; Thomson v. Bales, 123 F.2d 487; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444. (5) It was proper for the court to allow proof that the steam connection to Engine No. 32 could have been made from ground or floor level as substantive proof of negligence. Bailey, Admrx., v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Boston Maine R. Co. v. Kyle, 156 F.2d 112; Tatum v. Gulf, Mobile Ohio Ry. Co., 359 Mo. 709, 223 S.W.2d 418; Rothwell v. Pennsylvania R. Co., 87 F. Supp. 706. (6) The trial court did not err in giving plaintiff's Instruction 1 nor in refusing defendant's requested Instructions A, B, C, D, E and F, since the former properly declared the law and the defendant was not entitled to the latter under the evidence. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Raymond on Instructions, sec. 7652.1 (Pocket Part). (7) Defendant's requested Instruction L and requested Instruction K were misleading and confusing, did not properly declare the law and were properly refused. (8) There was no abuse of discretion on the part of the trial court in allowing counsel for plaintiff to cross-examine and impeach witness Wm. J. Narron by means of his extra-judicial statement since the record shows such witness was hostile to the plaintiff and plaintiff was surprised within the legal meaning of that term. 70 C.J., sec. 991, p. 794; Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851; Schipper v. Brashear Truck Co., 132 S.W.2d 993; Mooney v. Terminal R. Assn. of St. Louis, 352 Mo. 245, 176 S.W.2d 605; Mattice v. Terminal R. Assn. of St. Louis, 270 S.W. 306; Ellis v. U.S. 138 F.2d 612; Woelfle v. Connecticut Mut. Life Ins. Co., 234 Mo. App. 135, 112 S.W.2d 865. (9) The court properly allowed plaintiff's witnesses McKenzie and Montgomery to testify that the steam connection on Engine No. 32 could have been made from the ground or floor level. Ford v. Louisville N.R. Co., 355 Mo. 362, 196 S.W.2d 163; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Lang v. J.C. Nichols, 227 Mo. App. 1123, 59 S.W.2d 63; Stephens v. K.C. Gas Co., 354 Mo. 835, 191 S.W.2d 601; Sullivan v. Union Elec. L. P. Co., 331 Mo. 1065, 56 S.W.2d 97; Baltimore O.R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169. (10) Appellant misconceives the rulein this type of action with reference to burden of proof. It is not as stated in his supplemental brief a rule of "reasonable certainty" but rather one of "reasonable possible inference." Tennant v. Peoria P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916. (11) An appellate court confronted with the obligation of reviewing the facts in a case brought under the F.E.L.A. act to determine whether or not a jury's verdict should stand or fall is guided and restricted by certain well defined rules. (12) Negligence and proximate cause need not be proved by direct evidence, but can be, and indeed in most death cases must be, established by circumstantial evidence from which inferences of negligence and proximate cause may be drawn. Tiller v. Atlantic Coast Line R. Co., 317 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Bailey, Admrx., v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tatum v. Gulf, M. O.R. Co., 234 S.W.2d 418; Ford v. Louisville N.R. Co., 355 Mo. 362, 196 S.W.2d 163; Bly v. Southern R. Co., 183 Va. 162, 31 S.E.2d 564; Murphy v. Boston M.R., 319 Mass. 413, 65 N.E.2d 923; Bemberg v. Northern Pac. Ry. Co., 217 Minn. 187, 14 N.W.2d 410; Mo. Pac. Ry. Co. v. Bushey, 180 Ark. 19, 20 S.W.2d 614, certiorari denied 281 U.S. 728, 50 S.Ct. 245. (13) In viewing the evidence in the case at bar as to its sufficiency, this court must adopt the "Unitary Rule." Union Pac. R. Co. v. Hadley, 246 U.S. 330, 38 S.Ct. 317, 62 L.Ed. 751; Blair v. B. O. Ry. Co., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490. (14) The strict rule of proximate cause in ordinary negligence cases has no applicability to suits under the Federal Employers' Liability Act. Eglsaer v. Scandrett, 151 F.2d 562. (15) Decedent's death resulted "in whole or in part" from the negligence of defendant. Tennant v. Peoria P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520.
The administratrix instituted this action in damages under the Federal Employers' Liability Act (45 U.S.C.A., § 51 et seq.) for the death of her decedent, Fred W. Malone, who was fatally injured while working for defendant as a hostler at defendant's roundhouse and yards in Kansas City. It is plaintiff's theory that the death of her decedent was the result of falling from the top of an engine used in heating defendant's roundhouse. Defendant has appealed from a judgment upon verdict for plaintiff awarding $22,000 damages.
Herein upon appeal defendant-appellant contends plaintiff did not make out a submissible case, and the trial court erred in overruling defendant's motion for a directed verdict. And defendant-appellant assigns further errors of the trial court in the giving and in the refusal of instructions; in allowing plaintiff to impeach her own witness; and in the admission of evidence.
Fred W. Malone, 28 years old, in good health, had worked for some months for defendant as a switch-engine fireman and, a little over a month before his death, had become a hostler with the duty of running engines in and out of defendant's roundhouse.
Defendant's roundhouse of ten stalls was heated by steam generated in a small switch engine which was made stationary in stall number 7. The switch engine, sometimes called the "goat," was moved once daily from its stationary position to the ashpit outside the roundhouse where the engine was serviced by "knocking" the clinkers, grate cleaning and refueling, after which it was returned to its stall in the roundhouse and again made stationary by chocking the wheels.
The steam generated in the switch engine passed from the steam dome above the boiler into a heat-radiating system located near the ceiling of the roundhouse. The engine was connected with the heat-radiating system by a pipe 1¼ inches in diameter projecting 6 inches upwardly from the steam dome. This pipe was connected with another pipe by means of a swivel union drifting toward the left of the engine; another pipe, about 17 inches in length, extended horizontally toward the front of the engine and connected with another union and ell, and yet another pipe extended vertically and connected with the heat radiation pipes near the ceiling.
When the engine was taken out of the roundhouse, it was necessary to remove a water hose from the water tender at the rear of the engine; one hand valve down near the top of the steam dome was used to shut off the steam from the engine, and another hand valve up nearer the ceiling was used to seal off the steam in the radiation system; the steampipe was then disengaged at or by one of the swivel unions, and the [519] chocks were removed from the wheels of the engine, thus permitting the engine to be moved out of the stall and roundhouse free of all connection with the radiation system. After servicing the engine was returned to stall 7, the wheels rechocked, the engine being again made stationary; and the water hose was replaced in the water tender. Of course it was necessary to again connect the engine with the radiation system for heating service by re-engaging the steampipe connection and by opening the hand valves above and below the connection. A wrench was used in disengaging or re-engaging the threaded connection.
The top of the boiler of the engine was 10 or 12 feet from the ground or floor of the roundhouse, and the steam dome extended its height 1½ to 2 feet above the top of the boiler. Running boards or "catwalks" were fixed along the sides of the engine and above the engine's drive wheels. The running boards were used by defendant's employees in repairing and servicing the engine; and iron handrails about 1 inch in diameter extended along the sides of the boiler, being bracketed to the boiler at points somewhat below the top of the curved or rounded body of the boiler. An air pump was set on the left side of the engine about even with and below the steam dome, and the running board on the left side of the engine "stepped up" about 18 inches in passing over the air-pump apparatus.
When employees were proceeding to disconnect or to reconnect the steampipe connection, they usually went up on the front of the engine and passed back along the running board until they reached a point near and below the steam dome, or they gained access to the running board by passing out through the opening in the front of the cab. Then the employee would "get hold of the steam dome, pull myself up, brace one foot on the handrail, and my knee on the steam dome." Sometimes the employee would stand upon the upper surface of the boiler. In reaching the connection and valves, the employee had to lean over toward the left side of the engine. The steampipe was then disengaged, or re-engaged, by the employee; this required the use of both hands.
Plaintiff's decedent was on duty during the morning shift, 12 midnight to 8:00 a.m., the day of his death. The engine was usually given fire "knocking" service during that shift. At about four o'clock that morning, the steampipe was disengaged and plaintiff's decedent moved the engine out of the roundhouse for fire knocking, being assisted in this movement by Manley, the hostler's helper. Anticipating this movement, the steampipe had been disengaged either by plaintiff's decedent or by one Narron, machinist's helper. When the engine was moved back into the roundhouse, plaintiff's decedent put the hose back into the water tender to the rear of the engine, and was "standing on top of the tender headed toward the engine," when Manley closed the roundhouse door and started back toward the turntable in the yards. At this moment Manley heard the "noise of a man hollering." When plaintiff's decedent was found, he was five or six feet from the left side of the engine. He was "down on the ground about even with the steam dome and air pump." He was unconscious and bleeding at the mouth. He died within a few minutes.
The steampipe connection had not been re-engaged. There was a little mark on the side of the pump, it "was just like you rub a rag over a dirty place." There were some marks up around the steam dome, "they were just marks in the grime that settles on a locomotive around the steam dome — — — and there were some marks down from the steam dome." There was a "wrench or something lying up there — — — and there was blood down (on the ground) opposite right from the steam dome, and his cap was laying down there."
Plaintiff alleged, and the trial court submitted to the jury, the negligence of defendant in failing to provide plaintiff's decedent with a reasonably safe place to work, such negligence being pleaded and submitted by allegations and hypotheses that the engine was "slick, dirty and greasy"; that defendant had failed to provide "a [520] suitable and adequate ladder, platform, or other tool or device with and whereby he could have reached said connection as described in evidence without climbing upon said engine"; and that defendant had failed to provide a means "of making said connection between the pipe on said engine and said overhead pipe — — — so that said connection could have been made by deceased and others from the ground level." These several particularized submissions of the negligence of defendant in failing to provide plaintiff with a reasonably safe place to work were submitted in the conjunctive. Defendant-appellant asserts the evidence was insufficient to sustain any of the particularized submissions, and error is assigned in plaintiff's Instruction No. 1 because of the hypotheses of these specified faults and also in the refusal of defendant's requested instructions withdrawing each and all of the specific submissions from the jury.
Defendant-appellant urges there was no evidence from which it could be reasonably inferred the deceased fell from the top of the engine, — "no one saw him fall, and if he did fall, where he fell from," if he made the marks or scratches on and down from the steam dome and on the air pump in falling, "they could have been made in falling before he got to the top of the boiler," or others "may have made them in getting up on the boiler or in coming down" — how or what made them "is the merest conjecture"; and defendant-appellant asserts that, even had the evidence disclosed deceased was engaged in work in line with his duty and fell from the top of the engine, there was no substantial basis for a finding his fall was caused by any negligence of defendant. It is argued "there was nothing wrong with any part of this engine"; the running boards together with the iron handrails contemplated that employees would use them to keep the engine operating — there is no reason why deceased "could not have held on to them if such were needed to keep his balance." It is said the "safe place to work rule" does not apply under all conditions as in the case of "a person misstepping or losing his balance while moving on or over an engine."
In determining if there was sufficient evidence to justify a trial court's submission of a plaintiff's case to the jury, we consider the evidence from a standpoint favorable to plaintiff.
In Tatum v. Gulf, M. O.R. Co., 359 Mo. 709, 223 S.W.2d 418, this court stated that the question of the submissibility of a plaintiff's case in an action under the Federal Employers' Liability Act is to be approached in the light of the recent decisions of the Supreme Court of the United States. In recent cases the Supreme Court of the United States has said the Act does not make the employer the insurer of the safety of his employees; and the basis of the employer's liability is his negligence, not the fact that injuries occur. But it is the clear Congressional intent that, to the maximum extent proper, factual questions in actions arising under the Act should be left to the jury; that cases may not be taken from the jury merely because the question of liability is close or doubtful; that the jury has the right to make all reasonably possible inferences from such probative facts in the evidence as the jury chooses to accept; and that it is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from a jury on the theory that the court gives equal support to inconsistent and uncertain inferences. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062; Tennant v. Peoria P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740; Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598; Moore v. Chesapeake O.R. Co., 340 U.S. 573, 71 S.Ct. 428; Louisville N.R. Co. v. Botts, 8 Cir., 173 F.2d 164; Tatum v. Gulf, M. O.R. Co., supra.
One contention of defendant-appellant is — that, by the contracts of defendant with the various crafts, members of which crafts were employed at the roundhouse, the work of steam fitting had been assigned to steam fitters, and, in the absence of steam fitters at a given time, steam-fitting [521] work was assigned by the contracts to machinists or their helpers, and deceased, a hostler, was consequently not engaged in work in line of duty but was without the scope of his employment if he was making a steampipe connection at the time he was fatally injured. An examination of the contracts between defendant and the various crafts discloses no specific language forbidding a hostler from making steampipe connections, and no steam fitters were employed and present during this morning shift. There was also evidence that, in practice, hostlers disengaged and re-engaged the steam fitting in question — "there was quite a few hostlers down there and everyone worked that, disconnected or connected it." They did this in the presence of the foreman. The shown customary performance of the pipe-connecting operation by hostlers evidences the practical construction of the craft contracts by the employer and employee. There is justification for the conclusion deceased was within the scope of his employment. See Wiggins v. Powell, 5 Cir., 119 F.2d 751; and compare Wellinger v. Terminal R. Ass'n. of St. Louis, 353 Mo. 670, 183 S.W.2d 908.
In continuing our consideration of the contention plaintiff's case was erroneously submitted to the jury, we will briefly state evidence introduced relevant to the adequacy and safety of the footing provided for employees when they were disengaging or re-engaging the steampipe connection.
A hostler's shanty was outside the roundhouse. Hostlers went out there to get lubricants. In procuring oil, one "would get oil on your shoes." The engine "as a rule" was dirty; the surface of the boiler "was greasy, all of those engines are greasy and dirty looking." This engine did not get a regular "clean-up job" like the engines that went out on the road. Three witnesses (a hostler, a locomotive fireman, and the roundhouse foreman) stated the steampipes could have been so arranged that the disconnection and reconnection could have been made by one standing on the ground or floor of the roundhouse. Defendant-appellant contends these witnesses were not qualified to so testify. It is said the problem of making a connection down nearer the floor was one for expert opinion by a mechanical engineer schooled and experienced not only in mechanics but also in safety measures. We think the witnesses of practical experience with steam engines and with the very steam-heating plant herein involved were qualified upon this not too complicated problem in steampipe fitting. It does not take an expert in mechanical engineering or in safety measures to see the steampipe could have been extended down so it could have been reached from a lower level, and in such a position as to yet provide clearance for the engine when disconnected and in motion, and for employees to pass safely along and over the engine when reconnected and stationary. Compare Tatum v. Gulf, M. O.R. Co., supra; Lang v. J.C. Nichols Inv. Co., 227 Mo. App. 1123, 59 S.W.2d 63. There was a ladder, ten feet in length, available in the roundhouse. By the use of the ladder one could get onto the running board and reach the boiler, but it would seem the ladder was used for working on "boiler jackets, and such as that"; it was not provided for the purpose of and was inadequate and unstable as a footing for connecting the steampipe in question, situate up above the boiler and steam dome. "I don't know whether you could slant it that much."
There is no probable theory other than that plaintiff's decedent was fatally injured by falling from some part of the engine or tender. As stated, when deceased was last seen before his fatal injury, he was standing on the water tender and facing toward the engine. There was one task remaining in order to again make the engine a part of the roundhouse heating system — that task was to re-engage the steampipe above the steam dome. There was no other of defendant's employees in the vicinity of the engine at the time. The most direct route from the water tender to the steampipe connection was down through the cab and onto the running board. It is of course possible, as defendant suggests, the deceased slipped and fell from the water tender and, being injured, crawled to the place on the roundhouse floor immediately under the steam dome where he was found [522] by his fellow employees; or he may have fallen from the cab or from the running board. But his position when found and the fact that his fall was such as to quickly render him unconscious would tend to make it more probable he fell from some upper part of the engine. It is true the running board and handrail, as provided, seem adequate for the use of employees in the ordinary servicing and repair of the ordinary engine. But the employee, who had the duty peculiar to this very engine of disengaging or re-engaging the connection, was obliged to go on up above the running board and boiler. The adequacy of the running board and handrail may be in some measure indicatory deceased fell from some part of the engine other than the running board, and the inadequacy of the footing on top of the engine may be somewhat indicatory deceased fell from the top of the engine. This was no ordinary engine used in switching or pulling trains over defendant's lines. It was set apart and used in heating the roundhouse. As the evidence shows, it was to be serviced without the roundhouse at least once daily. And, in servicing, it was contemplated an employee would be required to go up on the top to disengage and again to re-engage the steampipe connection above the engine. No really stable footing was afforded for the employees in their performance of this duty. It seems to us it could be reasonably found the failure to provide a reasonably safe place or footing for the performance of this duty was negligence.
As we have said, there was a customary duty in the circumstances, the next one to be performed, which would take plaintiff's decedent to a position high above the running board and put him on an insecure footing and in illy balanced posture; and, assuming he fell while he was in such position, the marks and scratches around and down from the steam dome and on the air pump, and the place where deceased and his cap were found are circumstantially in harmony with and give support to the assumption, even though there was no evidence the marks could not have been made by another or at another time. We are of the opinion it could be reasonably inferred from the stated circumstances that deceased fell and that he fell from the top of the engine and that he fell at least "in part" because of the defendant's failure to provide adequate footing or means whereby defendant's employees could have performed their duty of disengaging and re-engaging the steampipe connection in reasonable safety. We believe the trial court did not err in submitting plaintiff's case to the jury.
A further complaint is made relating to plaintiff's Instruction No. 1. The first paragraph of the instruction advised the jury as follows,
"- — — this case — — — is brought and being tried under the Federal Employers' Liability Act as passed and approved by the Congress — — — with relation to common carriers of freight and passengers for hire in interstate transportation and their employees connected with such transportation; that under and by virtue of said — — — Act the defendant — — — owed his agents, servants and employees the duty to exercise ordinary care to furnish them a reasonably safe place to work — — -."
Defendant-appellant says the paragraph was too broad in intendment, giving the jury a misunderstanding as to the application of the rule of law regarding a reasonably safe place to work. It is argued that the Federal Employers' Liability Act "says nothing about furnishing employees a reasonably safe place to work." We see nothing prejudicial in the quoted paragraph. It was prefatory or introductory; and narrowed "negligence," in all of the respects against which the Act protects, to the negligence alleged and submitted in the instant case, that is, negligence in failing to furnish a safe place to work. The Act does not specifically state the rule that it is the employer's duty to exercise reasonable or ordinary care in providing the employee with a reasonably safe place to work, but the Act makes the employer liable in damages resulting "in whole or in part" from his negligence. The rights which the Act creates are federal rights protected by federal rules, which federal rules have been largely fashioned from the common law, [523] except as Congress has written into the Act different standards. At common law, the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain, and the failure to use such care is negligence. Bailey v. Central Vermont Ry., supra, and authorities therein cited. Due care contemplates the precautions commensurate with the dangers to be encountered in the circumstances or, as has been said by the Supreme Court of the United States in cases involving employers' requisite care in furnishing a safe place to work, "in all cases it is a question of the reasonableness of the care; reasonableness depending upon the danger attending the place or the machinery." Patton v. Texas P.R. Co., 179 U.S. 658, 21 S.Ct. 275; Bailey v. Central Vermont Ry., supra.
Defendant-appellant complains that the trial court erroneously permitted plaintiff to impeach her own witness by the use of a written statement formerly made by the witness. The witness testified relating to three material facts at the trial, in effect differently than he had theretofore stated in his written statement. Plaintiff does not seem to have known, when she put the witness on the witness stand, that the witness would change the effect of his former statements. Prior to trial and after the witness had made the written statement, his deposition was taken by plaintiff. None of the answers of the witness upon deposition were such as would indicate the witness was inclined to change the effect of his former written statement. Plaintiff was justified in believing the witness, when testifying upon trial, would not change the effect of his former statements, at least as to material matters. It is a general rule that a party may not impeach his own witness. However, when a party is unexpectedly surprised or entrapped; and unfavorable, adverse evidence is given by his own witness, he may interrogate the witness relating to and introduce into evidence the previous contradictory statements of the witness. Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851; Mooney v. Terminal R. Ass'n. of St. Louis, 352 Mo. 245, 176 S.W.2d 605.
The trial court refused defendant's requested Instructions K and L. The refused Instruction K, if given, would have advised the jury that defendant was under no duty to furnish a safe place to work "if the unsafeness was inherent in the work itself; therefore, the Court further instructs you that if you believe from the evidence unsafeness was inherent in the work of connecting the steampipes in question then your verdict must be in favor of the defendant Gardner." And the refused Instruction L, had it been given, would have directed a verdict for defendant if the jury believed "from the evidence that the connecting of the pipes in question could be performed in safety by one exercising reasonable care in performing such work."
There was no error in refusing the two instructions, K and L. Instruction K did not hypothesize the negative of defendant's negligence and left room for the jury's conclusion deceased assumed the risks of his employment (see Tiller v. Atlantic Coast Line R. Co., supra; 45 U.S.C.A., § 54); and Instruction L likewise in no way negatived defendant's negligence and so would have authorized a verdict for defendant had the jury considered the plaintiff guilty of contributory negligence, whereas "contributory" negligence in the instant case was not a defense, but was only to be taken into account by the jury in the diminution of damages in proportion to the amount of negligence attributable to the employee (45 U.S.C.A., § 53).
The judgment should be affirmed.
It is so ordered.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the Court en Banc. All the judges concur, except Conkling, J., dissents.