Benton v. St. Louis-San Francisco R. Co.
| Decision Date | 03 July 1944 |
| Docket Number | No. 38601.,38601. |
| Citation | 182 S.W.2d 61 |
| Parties | BENTON v. ST. LOUIS-SAN FRANCISCO R. CO. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.
Suit by Carlton R. Benton, administrator of the estate of William L. Dever, deceased, against the St. Louis-San Francisco Railroad Company, a corporation, for injuries sustained by deceased while engaged as a switchman. Verdict for defendant. From an order sustaining plaintiff's motion for a new trial, defendant appeals.
Reversed and remanded with directions to reinstate verdict.
Maurice G. Roberts and E. G. Nahler, both of St. Louis, and Thomas E. Deacy and Milligan, Kimberly & Deacy, all of Kansas City, for appellant.
Clarence C. Chilcott, of Kansas City, for respondent.
WESTHUES, Commissioner.
William L. Dever filed this suit against the defendant railroad company to recover $30,000 in damages for injuries sustained while he was engaged as a switchman in the yards of Fort Scott, Kansas. A trial resulted in a verdict for the defendant. While the motion for a new trial was pending Dever died and the case was revived in the name of Carlton R. Benton, administrator. The trial court sustained the motion for new trial and the railroad company appealed.
Dever relied on the res ipsa loquitur doctrine and based his claim on the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. It was conceded that at the time Dever sustained the injuries complained of the crew of which he was a member was engaged in interstate commerce. There are ten assignments of error in the motion for new trial. The order of the trial court recited that the motion was sustained upon all grounds assigned. Such a "shotgun" order gives no aid to counsel on either side or to an appellate court and it certainly reveals a lack of understanding of the issues tried. One of the points briefed by appellant is, that the trial court should have sustained the demurrer offered at the close of the case. We are of the opinion that this contention of appellant must be sustained.
At the time Dever was injured the crew of which he was a member was engaged in switching a car onto what was referred to in the evidence as the Drake spur, a short track which ran to a commercial plant and was utilized for loading and unloading cars. In order to place the car on the Drake spur it was necessary to move the car southward, on what was called the Brockett spur, to a point south of a switch leading to the Drake spur, then to push it north over the switch and onto the Drake spur. Plaintiff testified that the engine drawing the car was moving backward, south, on the Brockett spur and that he was riding on the step on the east side of the tender of the engine; that as the engine and car neared the switch he noticed it was set correctly for the movement; that he intended to alight from the engine at the switch and after the engine and car had passed over it to throw the switch so as to divert the car and engine on the northward movement to the Drake spur. He testified that as he was in the act of swinging off the step of the engine the switch lever moved over from east to west and the ball at the end of the lever struck him on the right foot causing him to fall into a ditch resulting in serious injury.
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