Adams v. Wabash R. Co.

• Citation: 199 S.W. 969
• Decision Date: 05 January 1918
• Docket Number: No. 18501.,18501.
• Parties: ADAMS v. WABASH R. CO. et al.
• Court: United States State Supreme Court of Missouri

199 S.W. 969

ADAMS v. WABASH R. CO. et al.

No. 18501.

Supreme Court of Missouri, Division No. 2.

January 5, 1918.

Appeal from Circuit Court, St. Louis County; John W. McElhinny, Judge.

Action by Anna M. Adams against the Wabash Railroad Company and others. Judgment for plaintiff. From an order granting defendants a new trial, plaintiff appeals. Affirmed.

Edward C. Crow and E. P. Johnson, both of St. Louis, and J. W. Halliburton, of Carthage, for appellant. J. L. Minnis and N. S. Brown, both of St. Louis, and A. E. L. Gardner, of Clayton, for respondents.

WHITE, C.

The appeal is from an order granting a new trial. Plaintiff, in a jury trial, recovered judgment in the circuit court of St. Louis county for damages on account of the death of her husband, who was killed while in the service of defendants. The new trial was granted on the grounds, as stated in the order, that the court erred in giving instructions asked by plaintiff and in refusing instructions asked by defendants.

Plaintiff's husband, William H. Adams, was employed by defendants as car repairer and inspector at Ferguson, Mo., a station on the Wabash line a few miles north of St. Louis. On April 1, 1913, while so employed, he assisted the crew of the noon suburban passenger train in making what is termed a "flying switch." At Ferguson the tracks ran approximately north and south. It was the end of the run. There was no turntable there, and the engine had to be switched around from the north end to the south end of the train for the return trip. That was done on this occasion by backing the train 200 or 300 feet south, beyond a switch which connected the main line tracks with a crossover track extending to the yard tracks. There the train was stopped and started back north. When it acquired sufficient speed, the train was uncoupled from the engine, and followed it at a decreasing speed until the gap between the two became sufficiently wide at the switch so that the switch could be thrown diverting the train to a different track from the one taken by the engine. That method was called the "flying" or "running" switch. Adams assisted in the following manner: He uncoupled the air hose between the engine and cars when the train was brought to a stop south of the switch. He then mounted the platform of the coach next the engine and gave the fireman a signal to go ahead. This signal was passed to the engineer and the train started back north. When the train acquired the proper speed, Adams gave the signal to slack, and when the train slacked he squatted down upon his heels at the edge of the platform, reached over, and raised the uncoupling lever, thereby detaching the engine from the train. This done, he started to rise, and in doing so pitched forward into the widening space behind the engine, was run over by the car from which he fell, and was killed.

One witness, Gabriel Griffin, who saw the accident, described it thus:

"It seemed like his hand, when the engine started to leave the car, pulled him from the rail that goes around the end of the car, and he fell on his face; it looked like it pulled him loose, like the jolt pulled him loose."

Mark Wilson, the brakeman on the car with Adams, in testifying for defendant, described it thus:

"The engine pulled ahead, and he fell like a man diving; when he let go the pin, he started to raise and fell as he was raising up."

And on cross-examination:

"I said at the inquest when he was pulling the pin he was standing at it like his glove was catching on the pin, hard to pull. He kept hold as if his glove had caught on the lever or the pin hard to pull. That was before the pin came out and he started to raise up."

Other facts important in determining the issues involved will be noticed later.

I. One of the errors claimed and noted by respondents as authorizing the order granting a new trial was the giving of the first instruction asked by the plaintiff, as follows:

"The jury are instructed that, if they believe from the evidence that at the time of the injury of the husband of plaintiff at the place stated, the officers, agents, or servants of the defendants, other than said husband of plaintiff, were then running said train and making an unnecessary running or flying switch of said train, and in doing so were failing to exercise ordinary care for the safety of the employés in their work upon or about said train, they were then guilty of negligence."

The objection which respondent makes to this instruction is that it submits an issue of negligence not charged in the petition, in that it authorized a recovery on a finding that the defendants were negligent in making an unnecessary flying switch.

The petition charges three acts of negligence as causing the injuries complained of:

(1) That defendants "negligently and carelessly caused said train of cars to be started for the purpose of having them uncoupled from the engine," while making the flying switch.

(2) That they were then negligently running the train at an excessive rate of speed. (Withdrawn from the jury by instruction.)

(3) That deceased was not furnished by defendant with a reasonably safe place to work.

Plaintiff introduced without objection the rules of the defendants, two of which, rules 29 and 39, were as follows:

"Rule 29. Unnecessary running switches or drops of cars are prohibited."

"Rule 39. They must start and stop their trains cautiously and use special care in coupling and switching cars to avoid injury to trainmen and disturbing passengers."

Other rules enjoined obedience to all rules, and emphasized the importance of enforcing them. The code of rules was said to have been adopted by the Wabash Company in 1901. Both sides assume that the defendants, receivers in charge at the time of the accident complained of, had continued the rules in force.

Evidence also was introduced by plaintiff tending to show that it was unnecessary on the day in question to make a running switch. The evidence was introduced without objection, and there was no affidavit under section 1846, R. S. 1909, showing defendant misled by the evidence. In fact, defendants themselves offered evidence upon the issue. The defendants therefore were not in position to urge that the ground of recovery submitted, violation of the rules in making an unnecessary running switch, was outside the issues tendered, if the proof was in fact a mere variance, and not a failure of proof of plaintiff's cause "in its entire scope and meaning," as provided in section 2021, R. S. 1909. Fischer & Co. R. E. Co. v. Realty Co., 159 Mo. 562, 62 S. W. 443; Von Trebra v. Gaslight Co., 209 Mo. 648, 660, 661, 108 S. W. 559; Thornton v. Smelting Co., 178 Mo. App. 38, 42-47, 163 S. W. 293; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455, 465-471, 16 S. W. 849, 10 L. R. A. 36; Litton v. Railroad, 111 Mo. App. 140, 147-150, 85 S. W. 978.

The first alleged act of negligence, that the defendants "negligently and carelessly started said train," is an inadequate statement. It would be open to a motion to make more specific, in that it does not state in what manner the starting was negligent, and possibly a demurrer would lie to it if that act of negligence were stated alone as a distinct cause of action. However, no objection was urged to its sufficiency before or at the trial. That, and also the allegation of excessive speed, which was afterwards withdrawn from the jury by instruction, were in the petition as allegations of negligence in the manner of making the switch. A failure to observe the rule regarding the flying switch would be negligence in the manner of doing it, and, at most, the evidence would be a variance from the allegation, and not a failure of proof, under the ruling in the Von Trebra Case and the other cases above cited. The St. Louis Court of Appeals in the Litton Case and the Springfield Court of Appeals in the Thompson Case offer as a test of a variance as distinct from a failure of proof that the case proven is the same cause of action as the case alleged, presumably that a judgment in the one would bar an action in the other. It is unnecessary to attempt anything so definite for the purpose of this case. Here it was not merely the same death at the same time and in the same circumstances, it was the negligent manner of making the running switch which was alleged, and whether the manner of making it was negligent was the issue submitted by the instruction. The failure to observe the rule was one way to do it negligently, and improper starting and excessive speed in making it were other negligent ways of doing it.

The instruction is not erroneous because it fails to require a finding that the negligence alleged was the proximate cause of the injury complained of. It does not purport to cover the whole case, and does not authorize a verdict. It purports to cover only one feature, the matter of the defendants' negligence, if the servants of defendants, other than deceased, "were then running said train," and if other instructions cover the whole case and properly direct the jury what is necessary to find in order to reach a verdict, this instruction was not improper.

II. Respondents claim that the motion was rightly sustained because of error in overruling their demurrer to the evidence. In the first place, it is asserted that there was no proof of the defendant's negligence, on either ground of negligence submitted.

The rule introduced without objection prohibited "unnecessary running switches or drops." It was shown that "flying switch," "running switch," and "drop" were synonymous terms. There was evidence as to just when in all cases a running switch was necessary, but the evidence is not very definite. However, it was said repeatedly by several witnesses that when the track was clear, and no obstructions anywhere, a standing switch could be made and a flying switch was unnecessary. And several witnesses, including the conductor in charge of the train, a witness...