Opinion
No. 41913.
May 14, 1951. Rehearing Denied, June 11, 1951.
Plaintiff hostler slipped on oil which had leaked onto an engine apron. A judgment for plaintiff is reversed, as there was no evidence that defendant had either actual or constructive notice of the oil.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Oil on Engine Apron: Unsafe Place to Work: Notice to Railroad Company Required. Plaintiff must prove that defendant railroad company had notice, actual or constructive, of the presence of oil upon the apron of an engine which caused plaintiff to slip and fall.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Notice: Oil on Engine Apron: Unsafe Place to Work: No Submissible Case. The evidence showed that defendant's engine finished a run without oil on the apron and that five hours later defendant hostler slipped and fell on oil upon said apron. There was no evidence that any other employee had knowledge of oil upon said apron during said period. So there was no submissible case on the issue of notice to defendant.
Appeal from Circuit Court of City of St. Louis; Hon. Harry F. Russell, Judge.
REVERSED.
E.G. Nahler, C.H. Skinker, Jr., Roscoe Anderson and Cullen Coil for appellant.
(1) Plaintiff by submitting in his instructions only one issue of negligence thereby abandoned all other charges of negligence upon which proof was offered and waived his rights under all assignments of negligence not submitted; and on this appeal the question of whether such abandoned assignments of negligence are supported by substantial evidence in the record is not before this court. Thus, the sole issue on this appeal, insofar as the sufficiency of proof is concerned, is whether plaintiff's proof sustains the one assignment of negligence submitted, to wit: That defendant failed to furnish plaintiff a reasonably safe place in which to work by reason of permitting the apron of its engine to become slick and slippery on account of the presence of oil thereon. Guthrie v. St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Bowers v. Columbia Terminals Co., 213 S.W.2d 663; Schiermeier v. Kroger Grocery Baking Co., 167 S.W.2d 967. (2) Plaintiff failed to adduce proof to make a submissible case on the sole issue of negligence submitted, because: There was no proof adduced from which a jury could reasonably find that defendant had actual or constructive notice of the presence of oil on the apron or actual or constructive notice of any condition or defect which might have caused oil on the apron; and on the contrary, the plaintiff's evidence negatived any possible inference that the defendant had or could have had such notice. Thus, an essential element of plaintiff's proof was lacking and plaintiff thereby failed to prove that any negligence of defendant was a proximate cause of injury to plaintiff. Hoover v. Baldwin, 111 S.W.2d 1011; Poe v. Illinois Cent. R. Co., 335 Mo. 507, 73 S.W.2d 779; Wilson v. Missouri Pac. R. Co., 319 Mo. 308, 5 S.W.2d 19; Bello v. Stuever, 44 S.W.2d 619; Wallingford v. Terminal R. Assn. of St. Louis, 337 Mo. 1147, 88 S.W.2d 361; Lavender v. Illinois Cent. R. Co., 219 S.W.2d 353; Hartgrove v. Chicago B. Q.R. Co., 218 S.W.2d 557; Williams v. Illinois Cent. R. Co., 229 S.W.2d 6; Hoock v. S.S. Kresge Co., 230 S.W.2d 758; State ex rel. Wilkinson v. Central Surety Ins. Corp., 232 Mo. App. 748, 112 S.W.2d 607; Klotsch v. P.F. Collier Son, 340 Mo. 40, 159 S.W.2d 589. Cox, Cox Cox, W.F. Smith and William A. Moffitt, Jr., for respondent.
(1) Negligence or lack of ordinary care under the Federal Employers' Liability Act is common law negligence or lack of ordinary care, which is defined as the lack of due care under the circumstances, or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation, or doing what such person would not have done. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Larsen v. Chicago N.W.R. Co., 171 F.2d 841. (2) It is the duty of a railroad company to furnish its employees with a reasonably safe place to work, which duty becomes imperative and exacting as the risk increases. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Larsen v. Chicago N.W.R. Co., 171 F.2d 841. (3) Unless there is a complete absence of probative facts, the question of whether defendant was guilty of negligence in furnishing a reasonably safe place to work is for the jury to determine from all the facts and circumstances. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Larsen v. Chicago N.W.R. Co., 171 F.2d 841; Louisville N.R. Co. v. Botts, 173 F.2d 164. (4) Once there is a reasonable basis for concluding that there was negligence which caused the injury, it is irrelevant that fair-minded men might reach definite conclusions. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Larsen v. Chicago N.W.R. Co., 171 F.2d 841. (5) The court may not take a case from the jury because it rests on the testimony of what a single witness has seen and heard and is disputed by what numerous opposing witnesses have seen and heard. Such a conflict presents a question not on legal sufficiency, but on the probative value of the evidence which it is the province of the jury and not the court to resolve. Henwood v. Coburn, 165 F.2d 418; United S.S. Co. v. Barber, 4 F.2d 625. (6) The recent decisions of the Supreme Court emphasize that questions of negligence and proximate cause under the Federal Employers' Liability Act are generally for the jury; that the field of jury inference is a broad one and only requires a rational possibility on the facts; and that a verdict is not necessarily one of speculation and conjecture because arrived at by the application of general experience and common reaction to the evidentiary situation. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54. 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Tennant v. Peoria P.U.R. Co., 321 U.S. 29. 64 S.Ct. 409, 88 L.Ed. 520; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Henwood v. Coburn, 165 F.2d 418; Louisville N.R. Co. v. Botts, 173 F.2d 164. (7) Once there is evidence upon which the jury could have found negligence on the part of the defendant, which contributed in whole or in part to plaintiff's injuries, the jury was free to discard or disbelieve whatever facts were not consistent with its conclusions. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Stanford v. Pennsylvania R. Co., 171 F.2d 632. (8) The evidence and the legitimate inferences from such evidence in this case show conclusively that there was sufficient proof to make a submissible case on the question of whether defendant was negligent in failing to furnish plaintiff with a reasonably safe place in which to work. Hilderbrand v. St. Louis-S.F. Ry. Co., 298 S.W. 1069, 220 Mo. App. 1229; Highfill v. Louisville Nashville R. Co., 154 F.2d 875; Brown v. St. Louis S.F. Ry. Co., 227 S.W. 1069. (9) There was sufficient proof offered to show that the presence of the oil on the apron could only have gotten there through the active agency of one of defendant's employees. DeMoulin v. Roetheli, 189 S.W. 562, 354 Mo. 425; Wood v. Walgreen Drug Stores, 125 S.W.2d 534. (10) Such employee's act and knowledge, whether the knowledge was actual or merely constructive, was the act and knowledge of the defendant itself, so that it was no part of plaintiff's burden to show that the oil had been on the floor sufficiently long for defendant to have been charged with knowledge of its presence there and to have removed it before plaintiff slipped upon it. Such burden is cast upon the plaintiff only where the thing or substance which occasioned plaintiff's injury was put upon the apron by someone other than the defendant or his own employee. DeMoulin v. Roetheli, 189 S.W. 562, 354 Mo. 425; Wood v. Walgreen Drug Stores, 125 S.W.2d 534; Busby v. Southwestern Bell Tel. Co., 287 S.W. 434; English v. Sahlender, 47 S.W.2d 150; Armstrong v. Kroger Grocery Baking Co., 78 S.W.2d 564; Savona v. May Department Stores Co., 71 S.W.2d 157. (11) Where there is evidence that some precautions were taken for employee's safety, but that further precautions were possible, there was evidentiary basis for submitting the issue of the railroad's causal negligence to the jury. Boston M.R. Co. v. Meech, 156 F.2d 109. (12) If knowledge of the dangers to employees or means of avoiding them were available, the law will not permit the defendant to set up a defense of its want of knowledge of the dangers and of the means of avoiding them. Cleveland v. Laclede-Christy Clay Products Co., 113 S.W.2d 1065; Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 323, 336 Mo. 746; Mooney v. Monarch Gasoline and Oil Co., 298 S.W. 69, 317 Mo. 1255.
In this action under the Federal Employers' Liability Act, Joseph B. Thompson, a hostler in the Frisco yards at Pensacola, Florida, slipped upon the engine's deck or apron while shaking the grates and fell against the coal gates. The fall activated or "lighted up" a pre-existing arthritic condition and Mr. Thompson has been unable to work since June 4, 1944, the date of the occurrence. Upon this appeal from a judgment in October 1949 for $24,000.00 the meritorious question is whether the trial court erred in refusing to direct a verdict for the railroad at the close of all the evidence.
Basically, the plaintiff's case is founded upon the breach of the railroad's nondelegable duty to furnish a safe place to work. 45 U.S.C.A., Sec. 51; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. There is no claim that this case falls within the absolute liability of either the Safety Appliance Act or the Boiler Inspection Act. Compare: McCarthy v. Pennsylvania R. Co., 156 F. (2) 877 and Affolder v. N.Y., C. St. L.R. Co., 338 U.S. 813, 70 S.Ct. 73, 94 L.Ed. 439. The case was submitted to the jury upon the specific hypothesization and finding "that there was oil on the apron of said engine where this plaintiff was required to work, and that said apron was slick and slippery by reason thereof," and that the railroad was negligent "in permitting said place where plaintiff was required to work to become oily and slippery." In this connection, the railroad's liability to its employees under the act is not that of an insurer, liability is only imposed for negligent injury. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. And in this instance an inherently essential element of the plaintiff's basic case of negligence and a necessary prerequisite to his right to recover is proof that the railroad had notice or knowledge, either actual or constructive, of the presence of oil upon the apron. Wilkerson v. McCarthy, 336 U.S. 53, 60-61, 69 S.Ct. 413, 417, 93 L.Ed. 497, 503-504; Urie v. Thompson, 337 U.S. 163, 178, 69 S.Ct. 1018, 1028, 93 L.Ed. 1282, 1296-1297; Schilling v. Delaware H.R. Corp., 114 F. (2) 69, 71; Poe v. Illinois Central R. Co., 335 Mo. 507, 73 S.W.2d 779; Wilson v. Missouri Pac. R. Co., 319 Mo. 308, 5 S.W.2d 19. So the precise question for decision is whether there is a "complete absence of probative facts to support the conclusion reached" (Lavender v. Kurn, 327 U.S., l.c. 653) that the railroad had notice, actual or constructive, of the presence of oil upon the apron. If there is any evidence from which the inference of notice could be drawn we are, of course, concluded by the jury's finding. Wilkerson v. McCarthy, supra.
Engine 1291, upon which Mr. Thompson was injured, was "put on the spot" in the railroad's Pensacola yards about 10:15 on the night of June 3, 1944, after a run of one hundred fifty-one miles from Magnolia, Alabama. The engine was to remain there until the hostler shook the grates, cleaned it and placed it in the roundhouse. Mr. Thompson's eight-hour work shift began at 2:30 on the morning of the fourth. He built a fire in a local engine and about 3:30 he and his helper, David DuBose, began working on engine 1291. The helper was working on the ground, outside the engine, "washing it down" and "knocking the fire out." Mr. Thompson was in the cab of the engine shaking the grates. He said that he first shook the grates on the left side of the firebox and then he went over to the right side, "put my shaker bar on the post, started to shake; when I pulled back on it, it was locked, I shoved it over to the boiler head and it slipped off, and my foot slipped from under [139] me, and I fell back in the coal gates." He called to DuBose who helped him to the fireman's seat, and DuBose finished the job of cleaning the engine. When DuBose opened the fire door Mr. Thompson, for the first time, observed that there was some oil down on the shaker bar post and apron. He saw some oil on both the right and the left sides of the apron, there was more on the left than on the right. DuBose said: "Yes, there was some oil on the left hand side of the fire door. It came down from the lubricator, I suppose. Q. This oil that you speak of, that was over on the fireman's side, on the left side? A. Yes, where the lubricator would be. Q. That oil, you figured, came from the lubricator on the left hand side. Is that right? A. That's right. Q. There was not any oil on the right hand side, was there? A. No, sir, not enough to do any harm." From this evidence it was a reasonable inference and conclusion that the oil upon the apron made the cab an unsafe place to work. Hilderbrand v. St. Louis-San Francisco Ry. Co., 220 Mo. App. 1229, 298 S.W. 1069. But, is there a probative fact in all the circumstances from which the jury could draw the further necessary inference that the railroad had either actual or constructive notice of the presence of the oil?
The respondent does not claim that there was actual notice. He urges, however, that there was proof from which it was a possible inference that the oil "could only have gotten there through the active agency of one of defendant's employees" and, therefore, the railroad of necessity, had notice. He says, after the engine was "put on the spot" and in the absence of a hostler, that it was turned over to a watchman whose duty it was to care for the engine and keep the fire up until the hostler took charge of it. The fireman, in testifying for the plaintiff, did say that he had not banked the fire when he "put the engine on the spot" because "They have an engine watchman there" who had the duty of keeping enough steam until the hostler came on duty. But no watchman testified and there was no evidence from anyone that any watchman or any other person was on the engine from the time it was spotted at 10:15 or 10:30 until Mr. Thompson got on it about 3:30. It may be assumed that a watchman did get on the engine, nevertheless there is not a single fact or circumstance from which it is a possible inference that any such person saw oil on the apron at any time or that he had any duties concerning oil or a lubricator.
In Highfill v. Louisville Nashville R. Co., 154 F. (2) 874, a boilermaker slipped and fell on grease or oil on an engine's deck but the court said: "The record discloses that the lubricator was customarily drained at the cinder pit before the engine was brought to the roundhouse; * * *." There was testimony from which a reasonable inference could be drawn that, in the process of draining the lubricator, oil might run from the drainpipe, or might overflow the bucket and flow upon the engineer's deck." Consequently, it was a fair and permissible inference that the oil had accumulated on the engineer's deck in consequence of the negligence of some employee of the railroad. But in this case any such possible factual inference is repelled. The fireman, testifying for the plaintiff, said that there was no oil or grease on the apron of the engine when he left it at 10:30. He had washed the deck twelve to fifteen times on the one hundred fifty-one mile trip, the last time just before placing the engine in the yards. There were two lubricators on the engine, the one on the engineer's side "underneath the running board, on the front of the engine" and the fireman said that it was not leaking that night. He said that if it had leaked oil would not get on the apron or deck but would fall below deck on the running gear and engine. He said that there was a lubricator on the fireman's side of the cab but it was not leaking and if it had there would have been no oil on the deck or apron because it would have run down on the boilerhead. In addition, he testified that there was no defect in either of the lubricators and that if there had been any oil on the apron he would have seen it. The engineer, a defendant's witness, said that the lubricators were not leaking and that if they did the oil would not fall upon the deck. He said that there was no oil on [140] the deck when he left the engine. He said "the only way it would ever get on there would be to spill it in putting oil in there, but after you go to work, if the fireman is any good, which they have to be, they take the spray hose with some hot water and washes out the apron and the deck of the engine, and he does that several times on the trip to keep down the coal dust and to keep from getting so dirty." There was no evidence that any person, other than the fireman, had any duty to perform with respect to the lubricators and there is no evidence that any person saw or touched them after the engine was "put on the spot." About seven o'clock the following morning Mr. Thompson again got on the engine and explained to the roundhouse foreman and a boiler inspector how he fell and there was no oil on the apron or deck and Mr. Thompson did not claim to them that he had slipped on oil. A boiler inspector who examined the shakebar and shaker post a day or so before the trial, in St. Louis, described the mechanism of lubricators in general and said that they could leak if certain parts were missing and that there was oil in a can that sets in a rack on the fireman's side of the engine. But he was not testifying specifically about the lubricators or any oil can on engine 1291. In short, the only evidence concerning oil is that there was some on the apron after Mr. Thompson fell. He saw it and his helper saw it and cleaned it up. But when the oil got there, how it got there and how long it had been there is not to be even conjectured from a single circumstance in the record. The jury's ultimate conclusion and finding of notice (Schonlau v. Terminal R. Ass'n. of St. Louis, 357 Mo. 1108, 212 S.W.2d 420) rests solely on the two circumstances that the engine was in the yards, "on the spot," from 10:30 until 3:30 and the presence of oil upon the apron after Mr. Thompson fell. All the evidence negatives any possible inference that the oil got on the apron through the agency of any employee and therefore there is no possible basis for the necessary inference that the railroad had or could have had notice of its presence.
In this view of the case it is unnecessary to determine whether the instructions were erroneous or whether the verdict was excessive. Upon the entire record there was a complete absence of probative facts to support the essential conclusion that the railroad had notice, actual or constructive, of the presence of the oil and, therefore, the trial court erred in refusing to direct a verdict for the defendant. Accordingly the judgment is reversed.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en Banc. All concur.