Summary
In Bell v. Terminal Railroad Assn., 322 Mo. 886, 18 S.W.2d 40, we held that a fireman who was injured after being relieved from immediate duty and on his way for further orders was not under the act and found that such fact was conceded.
Summary of this case from State ex Rel. Mulcahy v. HostetterOpinion
May 18, 1929.
1. INTERSTATE COMMERCE: No Issue: Tried Under State Law. Where the pleadings tender no issue as to whether plaintiff was engaged in interstate commerce at the time of his injury, and it is alleged in the petition, and conceded by defendant, that he had been so engaged as a fireman in the movement of trains from one state to another, but was relieved of that duty upon the arrival of the engine at a certain station in this State, and that when injured he was en route from such station to a roundhouse in this State for orders, and defendant on the oral argument concedes that he was not engaged in interstate commerce at the time of his injury, all the questions presented upon plaintiff's appeal must be determined by the laws of this State.
2. ____: En Route to Roundhouse for Orders. Where the fireman, after executing all orders of his superior, the engineer, including the movement of cars in interstate commerce, was relieved of such duty at a station in this State, and while on his way from said station to a roundhouse in this State to report for further orders, was injured in attempting to alight from the moving engine, his mere expectation that he would at the roundhouse receive orders calling him presently to perform other tasks in interstate commerce is not sufficient to bring his case within the provisions of the Federal Employers' Liability Act.
3. NEGLIGENCE: Contributory: Obvious Danger: Instruction: Knowledge. A servant cannot be convicted of negligence unless the danger is so glaring as to threaten immediate injury. A fireman, who, in attempting to alight from an engine, slipped on its icy steps and fell and was injured, was not guilty of negligence simply because he knew there was danger of slipping if he stepped upon the ice and snow; and an instruction telling the jury that "if a reasonably prudent person, under like circumstances, would realize the danger of stepping upon said ice and snow, then plaintiff cannot recover," is error.
4. ____: ____: ____: Matter of Law. Where plaintiff, a fireman, stepped upon the steps on which were ice and snow in an attempt to alight from the slowly moving engine and slipped, fell and was injured, it cannot be held as a matter of law that the danger was so glaring as to threaten immediate danger, where the evidence tends to show that he and the engineer had used the icy steps for more than five hours immediately preceding the injury. The question of his contributory negligence is one for the jury to determine.
5. ____: ____: ____: Tendered by Plaintiff's Instruction. Where the pleadings did not tender the issue whether the danger was so glaring and obvious as to threaten immediate danger, plaintiff does not tender such issue by asking and receiving an instruction telling the jury that if they find certain facts to be true they should return a verdict for plaintiff, unless they further find that plaintiff was guilty of negligence directly contributing to his injury. Such a proviso in an instruction relating to contributory negligence is directed to the negligence charged against plaintiff in the answer, and does not broaden the issues beyond the pleadings.
6. ____: Evidence: Contributory Negligence: Alighting from Engine. In an action for personal injuries received by a fireman when he slipped and fell as he stepped upon the icy steps in attempting to alight from a moving engine, testimony tending to show that trainmen necessarily board and alight from moving engines and cars is competent on the pleaded issue of contributory negligence.
Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., Section 2620, p. 709, n. 26. Commerce, 12 C.J., Section 55, p. 46, n. 23. Master and Servant, 39 C.J., Section 1045, p. 834, n. 30; Section 1243, p. 1032, n. 70; Section 1398, p. 1211, n. 19; Section 1426, p. 1247, n. 78.
Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.
REVERSED AND REMANDED.
R.T. Brownrigg and Mason, Altman, Goodman Flynn for appellant.
(1) It is the duty of an employer to exercise ordinary care to furnish his employee with a reasonably safe place for his work and to exercise ordinary care to keep it so. (2) There was evidence tending to show that the step from which the plaintiff undertook to dismount was icy; that it was dangerous; that it remained in that condition on the switch engine from nine in the morning, when the plaintiff and his superior, the engineer, mounted the engine over that step, until three in the afternoon when they were relieved, and that it was the duty of the engineer to see that the steps were kept free of ice. The icy condition of this step, as shown by plaintiff's evidence, was evidence tending to show that the defendant had violated the duty to exercise ordinary care to furnish plaintiff with a reasonably safe place to work. Plaintiff, of course, knew of the icy condition of the step and of the danger incident to its use. However, where the defendant fails to perform his duty in the matter of furnishing a safe place, plaintiff is not barred of recovery, because he has knowledge of the danger, unless the danger is so imminent and threatening that a person of ordinary prudence would have refused to incur the risk. Defendant's Instruction 5 is erroneous in that it instructs the jury that plaintiff is barred of recovery if he knew of the icy condition of the step and knew that there was danger of slipping if he stepped upon it. It did not submit to the jury the question as to whether or not the plaintiff failed to exercise ordinary care for his own safety in putting his foot upon the step. That is the test which the instruction ignored. Evans v. General Explosives Co., 293 Mo. 364; Edmondson v. Hotel Statler Co., 306 Mo. 216; Corby v. Telephone Co., 231 Mo. 442; George v. Railroad, 225 Mo. 367; Jewell v. Bolt Nut Co., 231 Mo., 199; Littig v. Heating Co., 292 Mo. 241; Wendler v. House Furnishing Co., 165 Mo. 536. (3) The defendant, in offering Instruction 5, broadened the issues. It was not pleaded in defendant's answer that plaintiff was guilty of contributory negligence in putting his foot on the icy step. If contributory negligence is submitted in an instruction, the act of contributory negligence relied on must be both within the pleadings and within the evidence. McKenzie v. Randolph, 257 S.W. 126; McIntyre v. Ry. Co., 286 Mo. 234; Degonia v. Railroad, 224 Mo. 589. (4) The court erred in refusing to allow the plaintiff to show that trainmen are accustomed to alight from trains going as fast as ten miles an hour. He was charged with negligence in defendant's answer in attempting to alight from a moving train. This excluded evidence, as to the custom of trainmen in getting off trains going that fast, was clearly competent and relevant to the issue of negligence raised by the answer.
J.L. Howell and Roy W. Rucker for respondent.
The demurrer to the evidence should have been sustained. Horton v. Railroad, 233 U.S. 492; Boldt v. Railroad, 245 U.S. 44; Tomasco v. Railroad, 256 F. 14; Pryor v. Williams, 254 U.S. 43; Schaff v. Hendrich, 207 S.W. 543; Ry. Co. v. Delaney, 264 S.W. 735; Boyet v. Davis, 269 S.W. 413.
Plaintiff, in seeking to recover $25,000 damages for personal injuries, alleges that he was a fireman in the service of defendant and was injured in attempting to alight from a moving engine, the steps of which were covered with ice and snow which caused him to slip and fall to the ground.
The negligence charged was a failure of defendant "to provide plaintiff with a reasonably safe place and reasonably safe instrumentalities for the performance of his work."
The answer was a general denial, with a plea of assumption of risk, and pleas of negligence of plaintiff "in assuming a position upon the step board of an engine while the same was in motion so as to be in danger of falling therefrom," and "in assuming a position upon the step on the side of the engine while the same was in motion, and in attempting to alight therefrom while the same was in motion."
The reply was a general denial. Judgment was for defendant, and plaintiff appealed.
The evidence for plaintiff tends to show that on January 1, 1925, plaintiff, with three weeks experience as a fireman, entered the service of defendant as an extra fireman to fire switch engines used in moving cars from St. Louis, Missouri, to Relay Station, Illinois, and vice versa; that on the morning of January 3, 1925, plaintiff reported for duty to the defendant at the Twelfth Street roundhouse, in St. Louis, and was there instructed to report at Relay Station, Illinois; that he did so, and was assigned to engine 81, the steps of which were covered with ice; that he worked as fireman on said engine with engineer Burke from nine A.M. until 2:30 P.M. of that day, when, on their arrival at Washington Avenue station, in St. Louis, with a Pennsylvania train from Relay Station, they were relieved by engineer John Ditch and his fireman; that as they approached Washington Avenue station, engineer Burke, from whom plaintiff received orders, informed plaintiff that he (Burke) would leave the engine at said station, and directed plaintiff "to stay on the engine and go to the [Twelfth Street] roundhouse to receive further orders;" that engineer Ditch and his fireman boarded the engine as it was moving into said station, and thereupon Burke asked Ditch if he would slow down at Twelfth Street on his way with the passenger train to the Union Station to permit plaintiff to alight; that Ditch answered he would, whereupon Burke alighted from the moving engine, leaving plaintiff thereon; that plaintiff remained on the engine until it reached a point near Eleventh Street, when, in attempting to alight, he descended from the engine deck to the steps, from which he slipped and was injured.
The evidence for defendant tends to show that it was the duty of the engineer to see that there was no ice or snow on the steps.
I. The pleadings tender no issue as to whether or not plaintiff was engaged in interstate commerce at the time of his injury. It is alleged in the petition that he had been so Interstate engaged, but was relieved of that duty at Washington Commerce. Avenue station, and that when injured he was en route to the roundhouse for orders.
Defendant concedes plaintiff was relieved of that duty at Washington Avenue station, that he remained on the engine after being so relieved, and that he left the engine somewhere between said station and Union Station.
From the foregoing it appears that plaintiff was not engaged in interstate commerce at the time of his injury, and on the oral argument the defendant, in effect, so conceded.
In Erie Railroad v. Welsh, 242 U.S. 303, plaintiff, a yard conductor of defendant, after executing all orders of his superior, including a movement of cars in interstate commerce, and while on his way to the yard office to report for further orders, was injured in attempting to alight from the moving engine as it neared the yard office. It was held that plaintiff was not at the time of his injury engaged in interstate commerce, and that "the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act."
It follows that the questions presented on this appeal must be determined by the laws of this State.
II. Plaintiff challenges defendant's Instruction 5, which follows:
"The court instructs the jury that even though you may find and believe from the evidence that there was ice and snow on the step of the engine mentioned in the evidence, yet if you further find and believe from the evidence the plaintiff was Contributory aware of the presence of ice and snow prior to the Negligence: time of his stepping upon said step, and that a Knowledge. reasonably prudent person, under like or similar circumstances, would realize that there was danger of slipping if he stepped upon said ice and snow, then plaintiff is not entitled to recover and your verdict should be in favor of defendant."
Plaintiff knew there was ice and snow on the steps at the time he attempted to alight from the engine; and, if the jury found "that a reasonably prudent person, under like or similar circumstances, would realize that there was danger of slipping if he stepped upon ice and snow," the plaintiff would not Obvious for that reason be guilty of negligence in using the icy Danger. steps. A servant cannot be convicted of negligence "unless the danger is so glaring as to threaten immediate injury." [Edmondson v. Hotel Statler Co., 267 S.W. l.c. 615.] The instruction is erroneous and prejudicial.
But it is insisted that the danger was so glaring as to threaten immediate injury and a verdict should have been directed for defendant. We do not think so, for the evidence tends to show that immediate injury was not threatened by using the icy steps. Indeed, the engineer and fireman used them from nine A.M. to 2:30 P.M. of that day. The question was for the jury.
Furthermore, this issue was not tendered by the pleadings. But defendant insists that, even so, plaintiff is in no position to complain, for the reason he invited the court to Tender by submit the question of contributory negligence in Instruction. his Instruction 1.
In that instruction the jury were told that if they found certain facts to be true, they should return a verdict for plaintiff, unless they found plaintiff was guilty of negligence directly contributing to his injury. This proviso was directed only to the negligence charged against plaintiff in defendant's answer and was not a broadening of the issues beyond the pleadings.
III. Plaintiff next challenges the rejection of testimony tending to show that trainmen in the performance of their work necessarily board and alight from moving engines and cars. No offer of proof was made. However, on a retrial the testimony should be admitted on the issue of contributory Evidence: negligence. The other assignments of error are Alighting without merit and are ruled against plaintiff. from Engine.
It follows the judgment should be reversed and the cause remanded. It is so ordered. All concur.