Barrett v. St. Louis Southwestern Ry. Co.
| Decision Date | 10 September 1940 |
| Docket Number | 36542 |
| Citation | 143 S.W.2d 60 |
| Parties | BARRETT v. ST. LOUIS SOUTHWESTERN RY. CO |
| Court | Missouri Supreme Court |
Lashly, Lashly, Miller & Clifford, Clark M. Clifford, and Robert G. Maysack, all of St. Louis, for defendant-appellant.
Charles P. Noell and Hay & Flanagan, all of St. Louis, for respondent.
COOLEY, Commissioner.
Action under the Federal Employers' Liability Act, 45 U.S.C.A §§ 51-59. We shall refer to the parties, respondent and appellant, as plaintiff and defendant, as they were respectively styled below.
Plaintiff is the widow and administratrix of Lawrence Barrett, deceased, who died June 22, 1933, due, it is claimed, to injuries attributable to defendant, received on June 15, 1933. At the close of plaintiff's evidence the trial court sustained defendant's demurrer to plaintiff's evidence, forcing plaintiff to an involuntary non-suit. In due time and manner plaintiff moved to set aside the non-suit and reinstate the case, which motion the court sustained. Defendant appeals. No procedural question is raised. The question presented on this appeal is whether or not there was sufficient substantial evidence to make a case to go to the jury. If so the court was right in setting aside the non-suit and granting a new trial and its action should be affirmed. If not the cause must be reversed. The amount sued for exceeds $ 7,500, hence our appellate jurisdiction.
Defendant was a common carrier, by railroad, engaged in interstate commerce. It is conceded the case comes under the Federal Employers' Liability Act. Barrett was in defendant's employ as a brakeman on a freight train running between Illmo, Missouri and Jonesboro, Arkansas. He had been so employed for about fifteen years. In the early morning of June 15, 1933, about 2:50 A. M., it became necessary for Barrett to assist in repairing a switch that had been 'split' by some passing train and had to be repaired before the train on which Barrett worked could cross. Just what 'splitting' a switch means in railroad parlance is not very clear from the record but it seems that when an engine 'runs through' a switch and 'splits' it the result is to 'spring' or bend certain rods (to be hereafter described) so that the switch cannot be used until the rods are straightened. At the place involved the railroad track ran approximately east and west. On the south side of the track there was a switch stand. Extending from the switch stand to the south rail there was an iron rod, called variously a tie rod or throw rod generally tie rod, which term we shall use and between the rails a connecting rod called a bridle rod, which was joined to the tie rod by some kind of joint, making the two in effect a continuous iron rod, but jointed at about the south rail. When the switch was split the end of the tie rod near the rail was bent or 'sprung' downward and the bridle rod was bent or sprung upward between the rails. In order to make the switch usable it was necessary to straighten those rods by bending or prying up the bent down end of the tie rod and bending down the bent up bridle rod. Barrett got a board or plank, about four feet long, ten or twelve inches wide and two or three inches thick, inserted one end under the bent down portion of the tie rod near the rail and with some sort of fulcrum was attempting to pry up the tie rod. In doing so he got up onto the other end of the board so as to put his whole weight upon it. He was then facing eastward 'with his weight on his hands and knees, trying to jar that up.' While he was in that position a Mr. Hamm, an engineer in defendant's employ, who was also attempting to repair the split switch, struck the bridle rod a heavy blow with a sledge hammer. Barrett fell from the board or was knocked off, receiving some injury to his neck. He made some remark like 'Damn, that popped hell out of my neck,' and 'went over to the switch shanty and sat down.' He did not work any more. He died seven days later. There was evidence tending to show that his death resulted from the injury thus received, but as the question of whether or not his death resulted from injuries received by falling from the board is not briefed or apparently presented, we shall not detail the evidence relative thereto.
While Barrett was thus on the board he was 'springing on it, pushing up and down' 'looked like he had his knees or trying to get his whole weight right on the board.' At that moment Barrett was west of the tie rod, on the outside of the south rail facing, if he had been looking, in a generally eastward direction and Hamm was between the rails, east of the bridle rod, and facing, generally speaking, westward. They were but a few feet apart and, speaking in a general way, were facing each other but, as described by plaintiff's principal witness, 'on an angle,' Hamm being a little to the north of Barrett, not directly in front of him. Plaintiff's chief witness, Roy King, who witnessed the occurrence, testified that Hamm gave Barrett no warning that he was going to strike the bridle rod with the sledge hammer nor did Barrett ask him to do so. Other facts as may be deemed necessary will be stated in the course of the opinion.
In order to charge defendant with liability there must be substantial evidence tending to show negligence on defendant's part and that plaintiff's injury, in whole or in part, resulted proximately therefrom, and the burden of proof is upon the plaintiff so to show. See Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578. There does not seem to be substantial dispute as to this legal proposition, so further citation of authorities seems needless. Also it seems to be conceded that if, in the circumstances, Hamm was negligent in striking the bridle rod as he did, the defendant would be liable for such negligence unless relieved for other considerations later to be discussed, so, on the question of negligence vel non of defendant we need not discuss the 'fellow servant' doctrine.
Taking first the question was there sufficient substantial evidence to make a case for the jury as to whether negligence attributable to defendant was shown? We think so. In ruling a demurrer to the evidence the evidence must be viewed in the light most favorable to the plaintiff. This is well settled under Missouri decisions. The Federal rule is thus stated in Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231 233, 74 L.Ed. 720: ...
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