Alcorn v. Missouri Pac. R. Co.

• Decision Date: 24 August 1933
• Docket Number: 31232
• Citation: 63 S.W.2d 55,333 Mo. 828
• Parties: G. M. Alcorn v. Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

63 S.W.2d 55

333 Mo. 828

G. M. Alcorn v. Missouri Pacific Railroad Company, a Corporation, Appellant

No. 31232

Supreme Court of Missouri

August 24, 1933

Appeal from Cooper Circuit Court; Hon. W. S. Stilwell Judge.

Affirmed.

Thomas J. Cole, Ragland, Otto & Potter, Montgomery & Rucker Pendleton & Martin and W. V. Draffen for appellant.

(1) Admissions made for the purpose of a trial are judicial admissions, and as such are binding and conclusive on the party making them. Pratt v. Conway, 148 Mo. 298; State v. Levy, 262 Mo. 191; State ex rel. v Reynolds, 284 Mo. 383. (2) In an action for personal injuries based on an alleged violation of the Safety Appliance Act, no recovery can be had unless it be shown that the alleged violation was the proximate cause of the injuries. Peters v. Ry. Co., 42 S.W.2d 588; Illinois State Trust Co. v. Railroad Co., 5 S.W.2d 368; Martin v. Railway Co., 19 S.W.2d 470; Railroad Co. v. Wiles, 240 U.S. 444; Davis v. Hand, 290 F. 76; McCalmont v. Railroad Co., 283 F. 736.

Thomas C. Swanson and Trusty & Pugh for respondent.

(1) Appellant's pretended assignments of error should be disregarded because: (a) Its assignment No. 1 is entirely too general. Mahmet v. Am. Radiator Co., 294 S.W. 1014. (b) Its assignment No. 2 is too general and wholly insufficient and points out no error. Mahmet v. Am. Radiator Co., 294 S.W. 1014; Haller v. Railways Co., 17 S.W.2d 392; Toliver v. Ins. Co., 47 S.W.2d 141. (c) Plaintiff was engaged in Interstate Commerce. Grand Trunk v. Lindsay, 233 U.S. 42, 34 S.Ct. 581; Lovett v. Terminal, 295 S.W. 89; Noel v. Ry., 182 S.W. 787; 2 Roberts (2 Ed.) p. 1213, sec. 624; Schureman v. Railroad, 237 F. 1; Payne v. Colvin, 276 F. 15; Foster v. Davis, 252 S.W. 433; Railroad v. Dennis, 91 So. 4, 260 U.S. 426; Johnson v. Railroad, 164 S.W. 260; Lorton v. Railroad, 267 S.W. 385; Railroad v. Cornett, 106 So. 242; Railway v. Powell, 252 S.W. 268; Clark v. Railroad, 317 Mo. 462; Miller v. Collins, 40 S.W.2d 1062. (2) Plaintiff was either entitled to a directed verdict, or the causal connection was for the jury. Grand Trunk v. Lindsay, 233 U.S. 42, 34 S.Ct. 581, and cases cited under par. (c), Point 1.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for personal injuries under the Federal Employers' Liability Act, Title 45, U.S.C. A sections 51-59, charging a violation of Section 2 of the Safety Appliance Act. The petition alleges that plaintiff was between the freight cars of an interstate train "because the same would not couple automatically by impact without the necessity of plaintiff's going between same for the purpose of adjusting the couplers and to aid in making the coupling." Defendant's answer set up both assumption of risk and that plaintiff's own negligence was the sole cause of his injuries. As to the latter the answer states: "That plaintiff voluntarily assumed a position between the freight platform . . . and a moving train. Plaintiff knew that there was not sufficient clearance between said train and said platform to enable plaintiff to stand between said platform and said train without being injured." Plaintiff obtained judgment for $ 20,000 and defendant has appealed. It is not claimed that this verdict is excessive and the interstate character of the work is not disputed.

Appellant in its brief states the facts as follows:

"Plaintiff was in the employ of defendant as brakeman. On the morning of December 21, 1929, he was head brakeman on one of defendant's freight trains running from St. Louis to Sedalia. At Hermann, an intermediate station, the three cars next to the engine were to be set out and left there. When the train reached Hermann, at 6:15 a. m., the coupling between the third and fourth cars from the engine was disconnected, the engine and the three cars then proceeded on west to a switch, and then backed east through the switch on to the house track. As it continued to proceed east plaintiff was riding on the ladder on the north side of the third car from the engine and on the east end thereof. The movements of the train were entirely under his control; he gave to the engineer such signals as he deemed necessary and the engineer obeyed them. There were two freight cars standing on the house track coupled together; it was plaintiff's purpose to couple the cars; the engine was moving east into these standing cars. (It is not questioned that it was also his duty.)

"On the north side of the house track there was a loading platform approximately eighty feet long. There was not sufficient clearance between the platform and the cars moving on the track for a man to stand and work. The westernmost one of the cars standing on the house track, the one to be coupled into, extended west of the loading platform about five feet. When the cars being moved by the engine came against this car, the coupling did not 'make.' Thereupon plaintiff stopped the engineer; the car with which the coupling was to be made rolled away about a car's length, fifty feet. Plaintiff then climbed down and went around to the end of the car he had been riding and adjusted the coupler. He next walked to the end of the car that had rolled a car length away and adjusted the coupler on it; he then stepped over the north rail of the track into the space between the track and the platform and gave the engineer a signal to come back. The engineer moved the cars in compliance with the signal and the two cars which came together coupled by impact; but as the first one of the approaching cut being moved by the engine came along it caught plaintiff and rolled him between the car and the platform, causing the injuries for which he seeks recovery. All of the cars were standing still while adjustments of the couplers were being made, and remained motionless until plaintiff gave the back up signal."

Respondent does not dispute these general facts but says that he remained where he would be between the cars, when they came together for the purpose of seeing whether the coupling made on the second impact and doing something further if it did not, and that after they came together the second time he attempted to signal the engineer to stop, but was caught between the first of the moving cars and the platform before he could do so. The plaintiff himself was the only witness as to just what he did and he detailed the facts, as follows:

"Q. And then what did you do next? A. Walked around the car that was on the engine and opened this knuckle -- got hold of the pin lifter on the south side and tried to open the knuckle. I had to jerk it three or four times to get it up and finally I got it open. Q. When you find one hard to open like that, do you know whether or not it is going to close or drop down again? A. No, sir. Q. Can you explain or do you know what made it hard to open -- did you find out or investigate? A. No, sir, I didn't find out what was the matter with it. Q. When the pin lock does not drop, how do you get them down? A. You have to jerk them down sometimes, and sometimes knock them down and sometimes hit them and they will go down. Q. After you got this lock up and the knuckle open on the car you rode in on, then what did you do with reference to the other coupler on the standing car? A. I walked back and adjusted the knuckles on the standing car. Q. Explain what you had to do and how you did it? A. This knuckle was standing open and I shoved it to and the pin lock didn't drop, and I had to take my finger and guide it down through the hole. I did it with this hand and held the pin lifter with this hand, so I could guide it down through the hole like this (indicating). . . .

"Mr. Trusty: When you made the adjustments on the west end of the car that was standing alongside the platform -- the last one we were talking about -- when you got those adjustments made, what did you do then -- how did you move? The Witness: This car was right close to me. Q. Which car? A. The car that was coupled onto the engine. Q. What did you do? A. The cars coupled as they came together, and as they came together, I stepped away from the drawbar and something on this car caught and jerked me around in between the car and the platform. Q. On which car was it something caught you? A. On the car coupled to the engine. . . . Mr. Trusty: Tell whether or not you were between the ends of the cars when you got caught? The Witness: Yes, sir, I was between the cars. Q. Did the cars stop when the moving car came against the other one or not? A. No, sir. . . . Q. Tell the jury what you were doing in there. A. I was in there for the purpose of seeing that this other pin lock dropped and the coupling made." (Our italics.)

A few days after respondent's injury he made a written statement to appellant's trainmaster which appellant offered in evidence and which contained the following recital of the facts:

"I stopped the engineer, and walked in between the cars, opened knuckle on the car that was coupled to the engine, which was the third car behind engine. These two cars at platform rolled back about a car length. I walked back and closed the knuckle on the car that was standing at platform, gave the engineer a back up signal, and I stayed in there to see if coupling made, and figured on stopping engineman soon as coupling made, then getting out from between cars. When the coupling made I just stepped back from between cars, as a habit I have, I guess. The car that coupled into it, which was MP 81753, caught me and jerked me around in between this car and the platform. I couldn't get my arm up to give engineer a signal to stop until about half of this car had shoved by me while between car and platform. . . . Q. You stopped engineer while opening knuckle on rear car of cut? A. Yes. Q. Then what did you do?...