SMITH v. THOMPSON

DEW, Judge.

The respondent brought this suit under the Federal Employers Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries received while engaged in his duties as an employee of the appellant. From a verdict and judgment for the plaintiff in the sum of $5000 the defendant has appealed.

The allegations of the petition, so far as pertinent to the points here made, are that a part of the duties of the plaintiff was to open and close coal chutes in loading locomotive tenders with coal; that, because of lack of other means, this required him to do part of this work on top of the rounded roof of the engine cab; that on September 26, 1948, while in the scope of his employment, he was injured as a direct result of the defendant's failure to provide him a safe place in which to perform his duties, as he had been instructed to perform them, in that defendant failed to provide proper lighting facilities at the time and place where he had to work to carry on his assigned duties; that defendant failed properly to instruct him how to perform his tasks, thereby increasing the hazards thereof.

The answer challenged the sufficiency of the petition to entitle plaintiff to any relief, denied the allegations of negligence and alleged contributory negligence.

According to the plaintiff's evidence he went to work as usual at 10:00 p.m. on the date aforesaid in the railroad yards at Coffeyville, Kansas, where the defendant maintained a roundhouse and other facilities for the care of the locomotives. For about a year plaintiff had been employed by defendant at the Coffeyville yards, variously as a fireman, hostler and hostler's helper. A hostler is a man who operates the locomotive in the yards and "spots" it at the various locations for the different services. The hostler's helper is the man who opens, closes and manipulates the swinging "aprons" from the chutes in loading coal in the tender or sand in the sand dome and signals the hostler when and where to place the locomotive for those and similar purposes. At the time in question plaintiff was the hostler's helper, and they were engaged at the time in filling the tender with coal from the "aprons" which extend down from the chutes, which are built over and across the track where the locomotive had been spotted for that purpose. The locomotive in question was facing east and standing on a track that ran from the roundhouse some 250 feet to the west. It was on the north track of two parallel tracks. The cab and tender were immediately under the overhead chute structure, which was built over and across both tracks. Plaintiff had climbed to the roof of the cab of the locomotive where he set his lantern down, and then had climbed down into the tender, where he manipulated the aprons from the chutes so as to fill the coal compartment of the tender with coal. He then walked back to the cab roof and climbed upon it, intending to get his lantern, descend the ladder to the ground at the side of the cab, and have the engine spotted at a nearby cinder pit. This was as he had been told to do the job and was according to the customary methods. When he climbed upon the cab roof he was about a foot or a foot and a half from the right edge of the cab roof. The roof was somewhat rounded and was dirty and slick, such as was usual in the Coffeyville yards. The engine was standing still and had just returned from a run. It was dark and there was nothing to hold onto and he could not see his feet, but could see the outline of the cab. A light reflector on the chute structure and immediately above the tender was not operating and had no bulb in, it. He straightened up and took one step forward and was standing upright with both feet on the cab. He suddenly fell from the cab to the ground fourteen and a half feet below, sustaining his injuries. In the course of his direct examination he stated:

"A. * * * The way I filled that, got down on the tender along the edge of the tank and filled the back, put the apron of the coal chute back up, put my handle back in the proper place and got back up on the engine and started to go across, get my lantern and get down across the gangway of the engine, and it was so doggone dark there I couldn't see where I was going and I fell * * *.

"Q. Now, will you describe the condition of the engine? A. Well, as I said, it was dark, at night, dirty up on top, came in off the road and there were cinders from the smokestack back there; there wasn't anything to hold on to up there. The lights, there just wasn't enough light, enough to see what you were doing.

Q. Now, did you have anything — can't you steady yourself on the apron or anything as you walked back across this coal to get on top of the cab? A. No, because the apron had been put back up into place. There was nothing to hang on to. You would just have to climb up there, nothing to hold on to up there at all.

"Q. In other words, what you had to do, there wasn't anything to hold on to around the top of the cab of that engine? A. That is right, there wasn't anything up there to hold on to."

Cross-Examination:

"Q. Now, when you started to go up over the engine, after you had completed your work and put the apron of the coal chute back up, you were going up, as I understand, over the right-hand side of the cab, is that correct? A. That is right, sir.

"Q. And about how close to the right edge of the cab were you? A. Oh, I would say a foot, a foot and a half, maybe, I don't know exactly.

"Q. Then after you had stepped up on top of the cab you straightened up — A, (Interrupting) That is right.

"Q. (Continuing) — and took about one or two steps, is that correct? A. I don't think I took two steps; one step is all I possibly could have taken.

"Q. One step? How far was it from where you were after you took that one step, how far did you lack being up to where you left your lantern? A. Oh, I would say two feet. I couldn't reach it from where I was, not at that particular position.

"Q. I didn't — you say you could not? A. I couldn't have reached my lantern from where I was when I fell, no, I was too far away.

"Q. You had left your lantern about the middle of the top of the cab, is that correct? A. Approximately, I would say, yes. * * *

"Q. But at any rate, whether it did or didn't you left your lantern about the center of the top of the cab? A. Yes.

"Q. You were standing upright at the time you fell? A. To the best of my knowledge, yes.

"Q. In other words, you had both feet up on the cab and were standing up on the cab? A. As well as I can remember, yes, sir. * * *

"Q. Now, as a matter of fact, you don't know what caused you to fall, do you? A. Well, it was dark, nothing to hold onto up there —

"Q. I am just asking you, just asking you the question. As a matter of fact you don't know what caused you to fall, do you, Mr. Smith? A. That is the only reason I could say.

"Q. I mean you don't know, do you? A. No."

Part of his deposition was then read as follows:

"Q. You say you do not know what caused you to fall? A. No, sir".

He then asked if this was still his answer, and he said "That is right".

"Q. I say, that is your answer today, isn't it? A. To that question, yes, sir".

Witness's further answer in his deposition:

"A. The only thing I can say, it was dark, it was round, no place to hang on. Can't hang up in the air, is the only thing I can say".

On Re-Direct Examination plaintiff's counsel asked him:

"Q. Will you state whether or not you know what caused you to fall there on the night of September 26, 1948? Just answer whether you know, yes or no. Do you know? A. No. * * *

"Q. Were you able to see your feet? State whether or not you were able to see your feet as you walked along the top of the cab there that night. A. Why, no.

"Q. Was there anything that you could — state whether or not there was anything that you could hold on to, to steady yourself as you climbed on top the cab.

"A. Not on top of the cab, no."

Re-Cross Examination:

"Q. Mr. Smith, you could see the outline of the cab, couldn't you, the engine? A. Sure, you could see — you have to see up there, sure."

The hostler, a witness for the plaintiff, did not see what happened except that he saw plaintiff falling past the window in the cab. He testified that there appeared to be the usual amount of light in the area at the time in question. He described nearby floodlights used to light the pits, which lights, although not as high as the engine cab, would illuminate the area generally and shed some light on top of the cab. He further described a floodlight about 25 feet above ground, fixed on the southwest leg of the chute structure and about 10 feet higher than the roof of the engine cab, and trained toward it, which, he said, was burning at the time of the accident; another floodlight on a pole 8 feet high, near the cinder pit west of and near the coal chutes; another floodlight north of the north track and west of the chutes about 50 feet and on a pole 7 or 8 feet high; another 7 or 8 feet high, with two bulbs, one facing east and the other west on a pole at or near the southwest leg of the chute structure. He testified that these lights were all burning at the time of the accident and were all 16 to 18 inch reflectors. He also stated that there was a floodlight on the roof of the roundhouse, at the northwest corner of the building, and one at the northeast corner of the west section of the building, the first 30 feet high, located about 75 or 80 feet from the engine cab at the time in question and trained upon the chute and burning at the time, the second about 250 feet west of the chute and lighting the area generally. He said the light fixture above the cab in which there was no bulb had been abandoned when a new lighting system was installed, and had not been in use since witness was employed in 1943.

In defendant's behalf a fire-knocker testified that he started to climb upon the cab when plaintiff fell to the ground beside him. After plaintiff was taken care of, witness climbed to the cab to get the plaintiff's lantern, and found nothing unusual about the cab roof. He said there was some dust there "but none to hurt nothing". He said all the floodlights were burning, and had been since dusk. The roundhouse foreman inspected the area and the engine cab and found nothing unusual. He said all the floodlights had been burning. The defendant's electrician testified he installed the new lighting system in 1942, abandoning the porcelain reflectors, including the one above in the center of the chute structure, for "spread" reflectors 16 inches in diameter, equipped with 200 watt bulbs, designed to diffuse the light in all directions, and in addition, two large floodlights trained to light directly the area of the chutes, one 21 feet above ground on the chute structure itself, and 25 feet from the "apron" of the chutes, another 28 feet high and 85 feet from the "apron" and on the corner of the roundhouse.

Defendant's first point is that the court erred in not sustaining his motion for verdict at the close of plaintiff's evidence and again at the close of all the evidence. Of course, defendant having proceeded with his evidence after the court overruled his motion for verdict at the close of plaintiff's evidence, he has waived that point. Porter v. Equitable Life Assurance Society of the United States, Mo.App., 71 S.W.2d 766.

It is the theory of defendant that (1) evidence of dust on the engine cab is not proof either of negligence or that the roof was slick. Defendant contends also that the claim that the cab roof was dirty and slick was beyond the scope of the pleadings. He also asserts (2) that plaintiff's statements it was "dark" on the cab roof are merely conclusions and do not constitute proof that defendant negligently failed to furnish sufficient light there. He makes the further point (3) that the plaintiff failed to prove that the condition of the cab or the inadequate lights proximately caused him to fall.

Plaintiff concedes that his case is based on the failure of defendant to provide adequate light and for that reason failed to provide a reasonably safe place to work. His position is that the surrounding conditions which were shown merely fix the standard of adequate lighting, to-wit: that he was performing his work as instructed, and as was customary; that it was night time; that the engine cab was dirty, rounded and slick and that there was nothing to hold onto. Such facts, plaintiff claims, show the hazards of the premises and add to the defendant's burden of furnishing plaintiff with a reasonably safe place to work by supplying adequate lighting. Since the defendant challenges the sufficiency of the evidence to prove that such failure of adequate lighting, if any, was the proximate cause of plaintiff's fall, it is evident that if that point be well taken, the court erred in not sustaining defendant's motion for a directed verdict at the close of all the testimony, and the other points made on this appeal need not be considered.

Did the plaintiff, when he climbed upon the rounded cab roof, never fully attain his equilibrium and proceed on over the edge of the roof and fall? If so, where is the proof that inadequate lighting directly caused or contributed to cause such a fall? Did the plaintiff slip on the cab roof and fall? If so, was that the direct result of insufficient light? Did the plaintiff stumble over some obstacle or trip, or otherwise lose his footing or his balance because there was not enough light, and thereby was caused to fall to the ground? It is true that there is no evidence that he never attained his balance after climbing onto the cab roof, or that he stumbled over any obstacle, tripped or slipped, or lost his footing or balance because there was not enough light. As to any of such happenings he and he alone should have knowledge. The difficulty is that there is no evidence of what did happen due to insufficiency of light that caused the plaintiff to fall off the cab. The plaintiff, the sole source of information on the subject, did not testify as to what he did or did not do because of inadequate light, which caused him to fall off the cab. On the contrary, he repeatedly testified that, although he had climbed upon the cab, assumed an upright position, standing on both feet, and having taken one step toward his lantern, he suddenly fell to the ground, but that he did not know what caused him to fall. If he does not know, it is unreasonable to expect the jury to solve that essential inquiry. Mere speculation on that issue will not suffice. It was plaintiff's burden to supply substantial evidence, not only of inadequate lighting, but that it was the direct, proximate and procuring cause of his fall. This, we are compelled to hold, he failed to do. Consequently, the court erred in not sustaining defendant's motion for verdict at the close of all the testimony. Because of the foregoing disposition of the case, we shall not consider defendant's objections to instructions and his other points. Judgment reversed and cause remanded with directions to enter judgment for defendant.

All concur.