Allen v. Ross

• Decision Date: 11 October 1926
• Docket Number: No. 25389.,25389.
• Citation: 292 S.W. 732
• Parties: ALLEN v. ROSS et al.
• Court: Missouri Supreme Court

292 S.W. 732

ALLEN v. ROSS et al.

No. 25389.

Supreme Court of Missouri, Division No. 2.

October 11, 1926.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Hilbert Stuart Allen against Walter L. Ross, receiver of the Toledo, St. Louis & Western Railroad Company and another. From a judgment for plaintiff against the Toledo, St. Louis & Western Railroad Company, it appeals. Affirmed.

Jones, locker Sullivan & Angert, of St. Louis, for appellant.

Holland R. Polak, of St. Louis, for respondent.

HIGBEE, C.

Plaintiff had a verdict and judgment against the Toledo, St. Louis & Western Railroad Company for $18,000 for damages for personal injuries sustained by him on October 27, 1922, while employed as a car checker at Madison, Ill., by Walter L. Ross, receiver of said railroad company. The railroad company appealed.

The testimony for plaintiff is that he had been employed as a car checker for about 18 months in the yards of the company at Madison, Ill. There were a number of side tracks connected with a lead track running east and west. Plaintiff's hours of labor were from 11 p. m. to 7 a. m. His duties were to check the cars in freight trains, note the numbers and initials of cars and numbers of seals on sealed ears and their destinations, and write out a train sheet so the conductor of the train could recheck and get ready to leave on time. Plaintiff reported to the yardmaster, Flack, and went to work at 11 p. m. on October 26, 1922. He checked a train of about 34 cars on track 6 and while preparing the train sheet the train dispatcher sent in an order to let that train go out with only 19 cars and pick up others at Edwardsville. While Murdock, the switch foreman, and plaintiff, were in the office of the yardmaster, Flack ordered Murdock to make up a train on track 5, to leave at 2:30 a. m. for points in Indiana and Ohio, and directed plaintiff to check the cars.

Plaintiff began at the west end of the train, between tracks 4 and 5 on the north side of the cars, facing the south, with his left arm through the bail of his lantern and the lantern on his shoulder. He was proceeding in the customary manner, standing about 3 feet back from a car he was checking, when, about 1:15 a. m. he was struck, run over, dragged, and injured by a cinder car which was kicked or shunted west by the switching crew and engine on track 4, without any warning whatever. There was no man or light on the cinder ear. Murdock, the foreman of the switching crew, knew that plaintiff was engaged in his duties between tracks 4 and 5; in fact, saw him at a distance of 100 or 125 yards (or one whom he assumed was the plaintiff), with his lantern, engaged in checking the train, when he (Murdock) cut loose two cinder cars from a string of cars being moved west on the lead track, and shunted them onto track 4, where they moved west at a speed of 4 to 6 miles per hour and ran over the plaintiff. They made little, if any, noise, and were not heard or seen by plaintiff. Murdock's purpose was to make up a local freight train on track 4, due to leave at 7 a. m. Track 4 was clear when plaintiff began to check the train on track 5 and he believed the switching was all done, and was not informed there would be other switching in the yard before the departure of the train which he was checking. The clearance between the car plaintiff was checking and the cinder cars was about 2 feet 9 inches, without considering the grabirons on the cinder cars which projected 4¼. inches from each corner.

The switchyard was not lighted and there was no moon on the night plaintiff was injured. When the engine was about to be moved it was customary to ring the bell if any one was working nearby. It was customary, when plaintiff was engaged in checking cars, for passing switchmen to tell him if cars were to be switched by the place where he was working; that when he knew cars were coming down on another track plaintiff would flatten himself up against the car he was checking and allow them to pass him; that he had only half the usual time in which to do his checking and get the train sheet to the conductor; that when Murdock, the switch foreman, was about to cut the cinder cars loose from a string of cars which the engine was pushing on the lead track, he gave the usual high ball and stop signals with his lantern which were relayed to the engineer (who was on the north side of the engine and could not see plaintiff); these signals were received by the engineer, the cars were cut loose and shunted west on track 4, but no signal of this movement was given by bell, whistle, or otherwise; that Murdock, from his position, could have called to plaintiff, but he did not do so because he did not think plaintiff was in any danger from the cars; that Murdock heard plaintiff yelling and he and others ran to him and found that he had crawled over track 4 and was lying between tracks 3 and 4; an ambulance was called and plaintiff was taken to a hospital, where he remained 11 weeks and 5 days.

Further testimony Is that plaintiff's duties took him into all parts of the yard where he knew the crew would be switching cars, but, ordinarily, trains would be made up before he would go out to check them; that they hardly ever made up another train on a track where he was checking a train. It is conceded that the company had no rules regulating the movement of the engine or cars in making up trains or shunting cars in the yard, or for giving signals to car checkers or other employees in the yards to warn them of such movements.

Plaintiff did not see or hear the cinder cars moving toward him. He felt something strike him and he was at once thrown down, run over, and dragged under the car. His right leg was crushed and cut off about 6 inches below the knee; the right hip was dislocated, the femur being pushed upward, resulting in complete ankylosis of the hip joint; both arms were broken and shoulders dislocated; several ribs were broken; and plaintiff sustained a fracture or injury to the skull near the left ear, resulting in impaired hearing. Where the leg was amputated there is insufficient padding, making it hypersensitive at the end of the stump and the wearing of an artificial limb painful. This condition is permanent unless plaintiff should undergo another operation by cutting part of the bone away so as to get sufficient padding. Plaintiff still suffered pain from his injuries at the time of the trial, December, 1923, and was unable to do any kind of work, but otherwise was in good health. He was 45 years of age at the time he suffered his injuries and was then earning from $136 to $140 per month.

The evidence for the defendant, including the testimony of one or two members of the switching crew who were plaintiff's witnesses is that it is not usual or customary to give car checkers or other employees in the yard notice or warning by bell, whistle, or otherwise, of the movements of the engine or cars in the yard, or of the shunting or kicking of cars on or along a track or side track; that it is the custom for all such employees to look out for their own safety during such operations; nor is it customary to put a light or to station a man on the end of a car that is being so moved or shunted to warn employees in the yard. No member of the switching crew, except Murdock, the foreman, saw plaintiff in the yard, or knew that he was engaged in checking the train on track 5 at the time the cinder cars were shunted onto track 4, or knew that such movement would be attended with risk or danger to him.

The action was commenced against the receiver of the railroad company on January 29, 1923, under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8865); it being conceded that the plaintiff and the receiver were engaged in interstate commerce at the time plaintiff sustained his injuries. Shortly after the action was commenced the receiver was discharged, and the property of the railroad company, by an appropriate order of court, was returned to the company, and it assumed all obligations and liabilities of the receiver. Thereupon an amended petition was filed, making the railroad company a codefendant in this action. On July 18, 1923, a second amended petition was filed. We quote from the statement of appellant's learned counsel:

"The allegations of negligence were that defendant caused a moving car on track 4 to be first propelled and started by a locomotive and then to be suddenly uncoupled from same at a great distance from where plaintiff was working at the time and place complained of and roll said cars toward plaintiff without steam or other power, and that plaintiff was at that time in a position of peril and oblivious to the movement of said cars and the danger thereof; that defendant knew, or by the exercise of ordinary care could have known, and it became the duty of defendant to know, the danger of plaintiff and his oblivion thereto, and to warn plaintiff by bell, whistle, or other signal that said cars were being moved, as aforesaid, or cause a lookout man on said moving cars to have been stationed to warn plaintiff in time for him to have avoided being struck or injured, or to have some one on said cars to apply the brakes, stop same, or slacken the speed thereof in time to have avoided striking and injuring him, but that defendant wholly failed to do any of these acts; that defendant negligently omitted to provide and enforce proper rules for the protection of persons working about the switching yards, and neglected to provide a code of signals for warning persons working around said switchyards; that defendant knew that it was necessary for plaintiff to face toward the cars, standing on said track 5, with his back to track 4, and therefore it became the duty of defendant to warn plaintiff by bell, whistle, or other signal, or by a lookout man on said moving cars, or by a brakeman on said cars, to apply the brakes, stop the same, or...