Adams v. Quincy, O. & K. C. R. Co.

• Decision Date: 05 March 1921
• Docket Number: No. 22009.,22009.
• Citation: 287 Mo. 335,229 S.W. 790
• Court: Missouri Supreme Court
• Parties: ADAMS v. QUINCY, O. & K. C. R. CO. et al.

229 S.W. 790

287 Mo. 335

ADAMS v. QUINCY, O. & K. C. R. CO. et al.

No. 22009.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Rehearing Denied April 9, 1921.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

Action by Ralph Adams, by next friend, against the Quincy, Omaha & Kansas City Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed as to the defendant Railroad Company, and affirmed on condition of remittitur as to and against John Barton Payne, agent, designated by the President under the Transportation Act of 1920, and substituted as sole defendant and appellant.

Hall & Hall, of Trenton, and J. G. Trimble, of St. Joseph, for appellants.

Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondent.

SMALL, C.

I. Suit for personal injuries. The railroad company and William G. McAdoo, Director General of Railroads, were defendants when the petition was filed November 19, 1918.

The petition alleged that on October 28, 1918, plaintiff was in the employ of defendants as a common laborer with a section crew engaged in repairing the tracks of defendants at Knox City, Mo.; that he, on that date, lost his left eye, because one James, a fellow servant working with him, attempted to drive a spike into a tie, and "negligently struck at said spike, and negligently struck said spike and rail with said maul," and "thereby caused a piece of metal to break off of said rail, said spike and said spike maul, and to fly up, strike the left eye of plaintiff, and entirely put out the sight thereof, and said injury to said left eye has also resulted in a serious injury to the plaintiff's right eye and the sight thereof." The petition also alleged that said spike was weak and crooked, and not reasonably fit for said work, and said spike maul was slivered, split, broken, and battered, and not reasonably safe for doing said work.

At the January term, 1919, defendant railroad company filed a motion to dismiss, because at the time the injury was alleged to have occurred, to wit, October 28, 1918, its railroad was, and for some time previously had been, in possession of and operated by the United States government by defendant McAdoo, as Director General of Railroads under the Act of Congress approved August 29, 1916 (Comp. St. § 1974a); that plaintiff and his coemployees were not servants of defendant railroad company at the time of his injury, but of said Director General, and that by virtue of an order made and published by said Director General, on October 28, 1918, all suits sought to be prosecuted upon causes of action accruing while he was in possession and control of said railroad should be prosecuted solely against him as such Director General, and in no other manner and by no other name; that, inasmuch as said Director General had been made a party to said suit, the cause should be dismissed as to defendant railroad company.

On the hearing of this motion to dismiss, it was shown by evidence of defendant railroad company that said William G. McAdoo had resigned as Director General of Railroads, and Walker D. Hines was appointed his successor on January 10, 1919, and said Hines had issued an order, saying that in all actions pending, it should be unnecessary to use his name, but it should be sufficient if the name of defendant should be the "Director General of Railroads." Said motion was overruled January 27, 1919.

On February 14, 1919, an answer, entitled "Answer of William G. McAdoo, Director General of Railroads," was filed in said cause, but the record entry of such filing simply showed the filing of "Separate Answer of the Director General of Railroads."

Furthermore, defendants' attorney testified, on the hearing of said motion, that he represented Walker D. Hines, Director General of Railroads. Said answer, while entitled, as aforesaid, purports to be the answer of the Director General of Railroads, without naming him, "now in possession of said railroad," as well as in possession thereof when plaintiff alleges he was injured. In the title of the case on the record of the entry of the verdict and judgment, the railroad company and Walker D. Hines, Director General, are named as defendants, and the name of William G. McAdoo is omitted.

On said February 14, 1919, defendant railroad company also filed its answer. Both the answer of the Director General of Railroads and the railroad company set up that at the time complained of by plaintiff the said Director General, and not the railroad company, was in possession of and operating the railroad of the defendant company, and that employees, officers, and agents operating said railroad were the servants, and their acts were the acts, of the United States government and said Director General. Both answers also put the allegations of the petition in issue.

As to the evidence: Plaintiff testified, in substance: That he was 18 years old at the time of his injury. Had been through the first year in high school. Was 6 feet tall, and weighed 196 pounds before his left eye was put out; since then, 180. His eye was destroyed while at work as a section hand on the railroad of the defendants on October 28, 1918. He had worked about a week before that time. He was working to save money to take a business course in school. He never worked for a railroad previously, except for a week in the spring prior to the accident. The wage he received from defendants was $3.75 per day. He and other members of the section crew on the morning of October 28, 1918, had been repairing the main track west of the depot at Knox City, Mo., putting spikes in some new ties, and about 11 o'clock were directed by the foreman to go over to the side track north of the depot and spike the new ties, which had been put in there. That he went over to said side track with three other section men, Collier, James, and Westfall. That James and Collier started to drive two spikes in a tie, one spike on each side of the north rail; James driving the one on the north, and Collier the one on the south side of said rail. That James drove his spike in without difficulty, but Collier's spike bent over and got under the ball of the rail. Collier leaving the spike in this condition to answer a call of nature, plaintiff took his place on the south side of said rail, and undertook to straighten up the spike, and asked James to drive it in, because James was right-handed and the plaintiff was left-handed, and the spike was leaning towards the east and was against the rail, and a right-handed man could drive it in more conveniently than a left-handed man, provided he was on the south side of the rail, where plaintiff! expected James would place himself to drive the spike, but that James, without going to the south side of the rail, and without warning plaintiff that he was going to strike it, struck' the spike from where he was standing on the north side of the rail. At the moment James struck, plaintiff was just straightening himself up, and something hit him in the left eye, and at the same time plaintiff also heard a ringing sound, as if James also hit the rail with the iron maul he used in driving the spike. Plaintiff threw his hand up to his face, and his left eye "run out into his hand." Plaintiff suffered considerable pain at the time, and for some time thereafter, and at the time of the trial had pains in his head back of his right eye. He also suffered some inconvenience in seeing and reaching for things on his blind side. Plaintiff further said that about a week after he was hurt he returned from the hospital and examined the rail at the place where the accident occurred, and a small moon-shaped piece had been chipped out of the rail. He also afterwards saw the iron maul James used, and it had three or four small nicks on the side of the large end of it. His parents had given him the right to keep all the wages he should earn.

Plaintiff's medical testimony showed that the sight of his left eye was destroyed, and it was shrunken and shriveled. It was inflamed for some time after the accident, but had no settled inflammation in it at the time of the trial, although it was somewhat inflamed then, which might, however, have been from catching cold in it. The substance which struck it had never been removed from plaintiff's eye. If it was still in there, it might months or years afterwards set up inflammation that might cause the right eye to become inflamed, in which event it might become necessary to enucleate the left eye in order to save the right eye.

W. O. Westfall testified for plaintiff that he was the "nipper," and it was his business to put an iron bar under the tie and pry the tie up tight against the rail before they attempted to drive the spike, in order to make it solid, so that the spike would drive better; that on this occasion James struck the spike before he had the tie pried up tight, and before he was ready for the spike to be struck; that this was the first time he had ever seen them strike a spike before he had the tie pried up against the rail.

Two experts of 25 or 30 years' experience as section men and track foremen testified for plaintiff, without objection, that the proper way to drive a spike was for the man to be on the same side of the rail as the spike, because, if he undertook to drive it while standing on the opposite side of the rail, he would be more likely to chip the rail and hurt somebody than to hit the spike; also that the spike never should be struck until the "nipper" had the tie up against the rail; that is what the "nipper" "is there for."

Fred Barlow, of 18 months' experience as a section man, over defendant's objection that he was not sufficiently qualified, testified to the same effect as the other two experts.

Collier, whose place plaintiff took in trying to straighten up the spike, corroborated the plaintiff as to what took place before Collier left the scene, but he had not returned prior to the...