Cason v. Kansas City Terminal Ry. Co.
| Decision Date | 17 August 1938 |
| Docket Number | 34983 |
| Citation | 123 S.W.2d 133 |
| Parties | CASON v. KANSAS CITY TERMINAL RY. CO |
| Court | Missouri Supreme Court |
Rehearing Denied December 20, 1938.
S. W Sawyer, John H. Lathrop, and James F. Walsh, all of Kansas City, for appellant.
Martin J. O'Donnell, of Kansas City, for respondent.
COOLEY, Commissioner.
Defendant appeals from a $ 20,000 judgment obtained against it by plaintiff in the Circuit Court of Jackson County for personal injuries. The appeal presents first the question of the sufficiency of the evidence, the defendant-appellant contending that the evidence is insufficient to authorize a verdict and judgment for plaintiff; and the further contentions that the court erred in giving certain instructions for plaintiff, and that the amount of the judgment is excessive.
The action is based upon alleged violation of the Federal Safety Appliance Act, 45 U.S.C.A. § 11, which requires that cars used by railroad companies engaged in interstate commerce shall be equipped with 'efficient hand brakes.' By plaintiff's petition and a stipulation of the parties made at the trial facts are set forth that bring the case within said statutory provision. Plaintiff was a switchman in the employ of defendant in its switch yards at Kansas City, his duties requiring him to use the hand brakes on cars being moved through the yards in movements such as that here involved. He claims that he was knocked or thrown from the top of a box car on which he was attempting to tighten the brake by a sudden and unexpected reverse movement of the brake wheel caused by the failure of the brake to function properly, as will more fully appear hereinafter. Defendant denies that such was the cause of plaintiff's fall, its theory being that he was scraped or knocked off the car by coming in contact with the girder of a viaduct under which the car was passing. Certain facts are not disputed, viz.: Plaintiff was injured about noon on September 28, 1932, a clear day, by falling or being thrown in some way from the top of a box car which was being moved by defendant from its McGee Street yards to its warehouse, known as the Southwest Warehouse, in Kansas City. The movement was first east for several blocks to a switch stand, thence north-westerly to the warehouse. The 'train' consisted of an engine and one car -- the one from which plaintiff fell. From the McGee Street yards to the switch stand the railroad tracks pass under three viaducts, the one with which we are concerned being the middle one and known as the Charlotte Street viaduct. It extends north and south over the tracks, the pavement or roadway structure resting upon three steel girders, which also extend north and south over the railroad tracks. The roadway structure of the viaduct projects about eleven or twelve feet east of the east girder. The girders extend down from the roadway structure about six feet. The track on which the car was moving eastward is the northmost of several tracks that pass under the viaduct. The track going eastward is on an up grade of about 1.15 per cent., resulting that the clearance between the track and the east girder of the viaduct is somewhat less than between the track and the middle and west girders. In this connection it may be stated that plaintiff estimated the clearance between the north rail and the east girder at about 17 feet. A witness testified that by actual measurement made by him a little more than a year after the accident said clearance was then 16 feet 91/8 inches. The maps and plans according to which the viaduct had been constructed showed a clearance at said point of about 17 feet 5 inches.
It was virtually conceded -- in any event clearly shown -- that in riding on top of the car plaintiff was acting within the scope of his duties. Admittedly the car was to be placed in the warehouse, a large structure into which defendant's switch track from the above mentioned switch stand ran and it was plaintiff's duty to stop or 'spot' the car at the appropriate place in the warehouse after it should be shunted in by the engine and cut loose therefrom. Plaintiff was riding the car for that purpose, as his foreman knew and as was customary. He had been directed to go with the car for such purpose.
The brake in question was of the usual type of hand brake, consisting of a brake staff located in the middle of the end of the car, resting in a cup or 'stirrup' at the bottom of the car body and extending upward to five or six inches above the top of the car, with a brake wheel at the top by which to turn the shaft, and at the bottom connected by a chain and appropriate mechanism with the brake shoes. Turning the brake wheel to the right -- clockwise -- tightened the brakes. Below the top of the car, the exact distance being in dispute, there was a small platform or 'brake step' upon which the operator could stand, or if sitting on the edge of the car roof could rest his feet, in operating the brake. Just above this brake step there was a toothed or notched ratchet wheel attached to the brake staff so as to turn with it and having a 'dog' or pawl which fit into the sloping notches or teeth of the ratchet wheel so as to hold said wheel and the brake staff and prevent a reverse movement thereof when the brake was set or being tightened. In tightening the brake the operator often, as in this case, used a 'brake stick' or 'brake club', about 26 inches long, one end of which he would insert between the spokes of the brake wheel, holding the other end in his hand and using the stick as a lever, in order to obtain greater tension. On the car in question the brake mechanism was on the end of the car referred to as the west end, since the car was moving east. On that end of the car and between the brake staff and the corner of the car, referred to as the northwest corner, that is to the left of the brake staff as you faced east, there was an iron ladder from bottom to top of the car, with a grab iron above it on top of the car a little distance back from the edge, for use of a person climbing the ladder.
In addition to the foregoing facts plaintiff's evidence tended to show the following:
As the engine and car approached the Charlotte Street viaduct plaintiff was sitting on top of the car between the northwest corner thereof and the brake wheel. He estimated the height of the car at about 13 feet. He testified that he thought he could have passed under the girders while sitting erect but that he had bent over or 'ducked' somewhat in order to make sure of passing safely; that after he passed under the east girder and saw that he was in the clear he began 'taking up the slack' in the brake, intending to tighten it enough so that he could readily set it and stop the car when it reached the place where it was to be 'spotted'; that in so taking up the slack he first gave 'one pull' on the brake wheel with his right hand and then, feeling the 'tension begin to tighten' used his brake stick about twice. He testified:
The dog did not have a spring to force it into the ratchet. The brakeman had to apply the necessary pressure with his foot. When the brake wheel was turned to the right (as in tightening the brake), the dog afforded no obstacle to such movement, but the dog and ratchet, the latter with sloping notches or teeth, were so constructed that when the dog was pressed into a notch of the ratchet it would catch and prevent a reverse movement, if the instrumentalities functioned properly.
Plaintiff testified positively, several times, that while operating the brake he kept his toe pressed against the dog. He did not know what caused it to 'fly out' of the ratchet and permit the reverse movement. Asked by the court if, from his experience, he had any opinion as to what caused the unusual action of the wheel and brake he said several things might have caused it, and started to enumerate, thus: 'Now, if the bolt that goes through this dog that fastens to this platform had become worn, or the hole in the dog had become worn, to allow it to work up and down like that you see (indicating) when the tension was suddenly jerked against it, it could have jumped out over, raised up high enough at that end to have jumped out of the cog, you see; or, if the ratchet -- ' At this point he was interrupted. Later he said, 'Well, there was something the matter that allowed this dog to jump out of this ratchet cog.' Asked by defendant's counsel if he claimed there was anything wrong with the brake he said, 'Yes, sir, there was something wrong with it to make it act as it did.'
Plaintiff had had many years' experience in the line of work in which he was engaged when injured. His testimony was to the effect that he operated the brake in the usual and proper manner and that it failed to function. Countering plaintiff's contention that he operated the brake properly defendant offered evidence tending to show that a man of plaintiff's height, sitting on top of the car could not reach the dog with his left foot, as plaintiff claimed to have done, and introduced photographs and a model of the brake end of a car which its evidence tended to show was the same...
To continue reading
Request your trial