Rutledge v. Missouri Pac. Ry. Co.

Decision Date05 February 1894
Citation24 S.W. 1053,123 Mo. 121
PartiesRUTLEDGE v. MISSOURI PAC. RY. CO.
CourtMissouri Supreme Court

4. Plaintiff, a switchman, while attempting to uncouple a car in a railway yard, was injured in consequence of an unexpected movement of the train without signal from him. The movement was caused by the act of the locomotive engineer, in response to a signal from some employe on the train. Held, that these men were fellow servants.

5. Plaintiff counted on the absence of a rule that a person uncoupling cars should alone give the signal for the necessary movement of the train while so engaged; but it appeared that there were printed rules prescribing the signals for such train movements, and a long-established custom among the employes to the same effect as the rule which plaintiff demanded. Held, in the circumstances stated in the opinion, that the absence of such a formal rule could not reasonably be found to be the cause of plaintiff's injury. Macfarlane, J., dissenting.

6. Negligence is an affirmative fact, to be established by proof.

7. Where evidence tends to show that one of three persons (standing in diverse relations to the master) gave a certain signal, held, that it did not tend to identify a particular one of them as the person who gave it.

8. The general rule of law is that parties are concluded on a second appeal by the rulings on the first in the same cause, though this rule is subject to some exception as stated in the opinion.

9. Where it appears from plaintiff's own testimony that he has no cause of action, upon any view of the facts, the court will reverse the judgment without remanding.

(Syllabus by the Judge.)

Appeal from circuit court, Osage county; Rudolph Hirzel, Judge.

Action for personal injuries by William Rutledge against the Missouri Pacific Railway Company. Plaintiff had judgment, and defendant appeals. Reversed.

For former report, see 19 S. W. 38.

H. S. Priest and W. S. Shirk, for appellant. Ryors & Vosholl, I. W. Boulware, and J. W. Zevely, for respondent.

BARCLAY, J.

This is an action for personal injuries sustained by plaintiff. He charges defendant with liability therefor on account of the want of needful rules for the management of its business in which he was employed. We need not recite the pleadings, as their essential features will appear further on. The case was before the second division of the court on a former occasion, and is reported in 110 Mo. 312, 19 S. W. 38. Plaintiff's evidence disclosed that he was a switchman in the railway yards of defendant at Chamois, Mo., at the time of his injury, August 12, 1887. It was night, — about 9 o'clock. A local freight train had come into the yard, composed of both loaded and empty cars. These were arranged or "made up" under the direction of Mr. Humphrey, the night yard master at that point. In this process plaintiff received an order from Mr. Humphrey to cut off the last car. The train, consisting of 26 or 27 cars, was moving slowly westward, at a speed of about six or seven miles an hour. The car to be "cut off" or disconnected from the other cars was an empty flat, or coal, car. Immediately in front of it was a box car. The coal car had barriers of board, about three feet high, along the side. Plaintiff climbed upon the car, and had just passed around the end of the sideboard, approaching the drawhead to take out the coupling-pin, when the train suddenly checked its motion, without any signal from plaintiff, and he was thrown to the ground between the cars, and injured so that he lost his right arm in consequence.

The train was moved by a locomotive engine at the west, or forward, end. An engineer and fireman were upon the locomotive. The switching crew of the yards consisted of plaintiff and two other men, besides the yard master. One of these other switchmen was working on this train, towards the forward end, much nearer to the locomotive than plaintiff. The yard master was on the ground, and west of plaintiff's position when he was injured. All the switchmen and the yard master had hand lanterns, with which signals were given. The engineer of the train testified, on behalf of plaintiff, that he reversed the engine in response to a signal from some one, but he did not identify the giver of it. Mr. Dring, the switchman nearest to the engine, testified for defendant that he transmitted the stop signal to the engineer, but had received it from some one east of him, — that is to say, in the direction of the plaintiff. Plaintiff, as also the yard master and the remaining switchman, (who was a long distance east of the train, and not at the moment working with it,) testified, each for himself, that he gave no signal whatever at that time. On the part of defendant it appeared that the printed rules governing employes contained the following directions as to signals, viz.: "Lamp signals: (1) A lamp swung across the track is a signal to stop. (2) A lamp raised and lowered vertically is a signal to move ahead. (3) A lamp swung vertically in a circle across the track when the train is standing is a signal to move back. (4) A lamp swung vertically across the track when the train is running is a signal that the train has parted. (5) A flag or the hand, moved in any of the directions given above, will indicate the same signal as given by the lamp." The plaintiff, in his own examination, admitted that he was acquainted with the above rules, and that they were in force at the time of his injury. This is a brief outline of the essential features of the case. The plaintiff relies on a charge of negligence, in that defendant omitted to promulgate and enforce a rule that the person coupling or uncoupling cars should alone give the signals for the movement of trains necessarily incident to those acts.

1. It appeared from plaintiff's personal testimony that the point at which he was hurt was distant some 25 or 26 car lengths from the engine whose movement, unexpected by plaintiff, caused his injury; and that, when a man in the act of coupling could not be seen by the engineer, the signal was transmitted from the former to the latter through some intermediate employe, whose duty it was to repeat the signal. Plaintiff's own evidence shows that any such rule as he contends for, namely, that "no one shall give a signal to move the cars except the party who is doing the work" is entirely unreasonable and impracticable. Signals must of necessity often be communicated by others, as plaintiff himself admits. A rule which would require no movement of the engine to be made in such circumstances, except in response to a signal from one person, when he might be in a position where his signal could not be seen by the engineer, would be such an unreasonable impediment to the prompt dispatch of defendant's business as a public carrier that we do not consider the question whether or not defendant was bound to adopt it debatable, or one upon which fair-minded men would differ.

2. But let us view plaintiff's contention more broadly, treating it as a demand for some rule requiring the signal for a train's movement, in such a case, to start from the workmen engaged in handling the coupling machinery. The printed rules (above copied) prescribe with much precision what signals are to be made to direct the necessary movements of trains. They do not expressly state by whom the signals are to be given, but it is fairly to be inferred that they are to originate with the individual employe entitled at the time to call for the required movement. The printed rules are intended for use by men acquainted with the business they undertake. Rules are not required to minutely direct every detail of the work which the employes are accustomed to perform properly. Plaintiff himself said, in reply to the question, "Who has to give the signal?" "The man doing the work, for he can't do the work without it." The proof on behalf of plaintiff plainly indicates that the workmen understood and acted upon the printed rules touching signals, in accordance with the inference which those rules naturally suggest, and that a custom or practice existed, conforming to the method of work, which plaintiff claims should have been more formally expressed on paper, and declared to be a rule. He emphasizes the fact that a general custom, "system," or practice had long prevailed among the defendant's workmen at Chamois to the effect above stated, and relies upon it as tending to indicate defendant's negligence. Plaintiff, in his cross-examination, stated his legal position with entire frankness, in this way: "Question. That is what you base your whole case upon, — that the negligence of the company was its failure to print, in this time card, the custom that the man who wanted to stop or start the train should give the signal? That is your whole ground of complaint, is it not? Ans. Yes, sir." His petition puts forward substantially the same theory, for it is therein stated "that it is the custom for the person actually engaged in coupling cars to give all signals for the engine to move the cars in any direction; that this custom is merely in use by employes, and not because of any peremptory orders from the defendant." There can be no doubt as to the exact nature of plaintiff's claim, and the defendant insists that on the merits he has no standing in a court of law. It must be borne in mind that, on the former appeal, certain principles were...

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