Boyd v. Terminal R. Ass'n of St. Louis, 45035

• Decision Date: 12 March 1956
• Docket Number: No. 45035,No. 1,45035,1
• Parties: Joseph BOYD, Jr. (Plaintiff), Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Respondent
• Court: Missouri Supreme Court

Page 33

289 S.W.2d 33

58 A.L.R.2d 1222

Joseph BOYD, Jr. (Plaintiff), Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Respondent.

No. 45035.

Supreme Court of Missouri, Division No. 1.

March 12, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 9, 1956.

Tom R. R. Ely, St. Louis, for appellant.

Warner Fuller and Arnot L. Sheppard, St. Louis, for respondent.

VAN OSDOL, Commissioner.

Plaintiff, Joseph Boyd, Jr., instituted this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., against the Terminal Railroad Association of St. Louis for $75,000 for personal injuries. A jury returned a verdict for defendant, and plaintiff has appealed from the ensuing judgment.

Plaintiff's case was submitted to the jury in Plaintiff's Instruction No. I on the theory that plaintiff, a switchman, was on a freight car contained in a train of thirteen cars drawn by a switch engine in a westbound switching movement in defendant's Pickrell Yard in St. Louis; that defendant's employees operating in an eastbound switching movement moved defendant's train of cars negligently and against instructions across a connecting track toward the train on which plaintiff was riding so that there was imminent peril of collision; and that by reason of such negligence plaintiff 'had reason to believe and did believe that he was in peril of being injured or killed by such collision, and that by reason thereof he jumped from the car on which he was riding and was injured.' Defendant by answer had admitted the allegations contained in paragraphs of plaintiff's petition pertaining to the applicability of the Federal Employers' Liability Act; denied allegations of defendant's negligence; and alleged plaintiff was contributorily negligent 'in that he voluntarily left a place of safety, climbed up on top of one of the freight cars in his train and exposed himself unnecessarily on top of said car if said car should be hit by another moving car; that he ran the risk by unnecessarily climbing on top of the car as there was no emergency involving death or injury to any person which required him to go on top of said car; that he was at no time required to jump from the roof of said car and if he did so he did so negligently and carelessly.'

Plaintiff-appellant contends the trial court erred in instructing the jury. Defendant-respondent urges the basic contention that plaintiff failed to make a case submissible to a jury, and furthermore contends there was no error in the questioned instructions.

In ruling the contention that plaintiff did not make a submissible case, the appellant court considers the evidence in the light most favorable to plaintiff. The evidence favorable to plaintiff is considered as true, and plaintiff is given the benefit of every reasonable inference therefrom; and defendant's evidence, unfavorable to plaintiff, is disregarded.

Defendant's main-line east-west tracks are north of defendant's switch tracks in the Pickrell Yard. Generally the switch tracks lie in an east-west direction. In moving a train from defendant's main line to the Pickrell Yard, a cross-over track is used to pass trains westwardly to an east-west track, known as the 'third rail,' which is north of defendant's switch shanty. Trains may be moved westwardly over on the third rail to beyond a switch on the third rail some three hundred feet west of the switch shanty, thence eastwardly down the 'drill track,' a connecting or cross-over track, and through the 'puzzle' and onto one of five numbered switch tracks to the eastward. The puzzle consists of the various rails, points, frogs and mechanisms whereby trains may be switched to the various tracks in the yards east, west and south of the puzzle. The puzzle is approximately ten feet south of the westerly end of the switch shanty. It is two hundred eighty-nine and one-half feet from the point of the switch at the third rail and drill tracks to the westerly end of track No. 3 (Pickrell 3) at the puzzle. Track No. 3 in its farther extension westwardly is known as 'the horn,' and from the westerly end of the puzzle the horn veers or curves southwestwardly. Another east-west switch track, called the 'pocket,' is approximately eighteen feet south of the puzzle.

At 3 o'clock in the morning of April 5, 1954, plaintiff, foreman of a switch crew, had been working in assembling a cut or train of thirteen cars on track No. 3 east of the puzzle. Plaintiff's switch crew included head man Cross and hind man Restoff. The switch engine, headed eastwardly, was on the west end of the cut of thirteen cars. Plaintiff had orders to move the train westwardly through the puzzle onto the horn, thence to the 'back yard' to the southward. As the switch engine on plaintiff's train reached the puzzle, plaintiff was hanging on the stirrup on the south side near the east end of the fourth car from the engine. At this time he saw another cut of cars which we shall sometimes hereinafter refer to as 'Roemmich's train.'

Roemmich's train had proceeded westwardly along the third rail past the switch at the west end of the drill track. Roemmich's train was destined to move eastwardly into Pickrell Yard by way of the drill track and through the puzzle. The train consisted of a cut or string of thirteen or fourteen cars with engine on the west end of the train. The switch crew in charge of Roemmich's train included the foreman Cole and the head man Roemmich.

A short while prior to the westward movement of Roemmich's train on the third rail, Cole, the foreman, was in the switch shanty and received orders from yardmaster Baker to pull 'up over the (drill track) switch and hold his hand up.' By this yardmaster Baker meant that the Roemmich train was to be pulled westwardly on the third rail to the westward of the drilltrack switch and there to remain until 'Boyd's train came out of Pickrell 3 going around the back yard.' Plaintiff, then present in the switch shanty, heard the yardmaster's instructions. Cole transmitted these instructions to Roemmich.

As stated, when the engine of plaintiff's train proceeding westwardly had reached the puzzle, plaintiff was on the stirrup of the fourth car from the engine. Plaintiff testified that at this time he saw Roemmich's train shoving eastwardly through the drill-track switch. Admittedly, this eastbound movement was against the yardmaster's instructions, and if continued would bring the east end of Roemmich's train into contact with plaintiff's train which was then proceeding westwardly on track No. 3 through the puzzle around the horn. Plaintiff could not precisely say how fast Roemmich's train was moving, but it was 'coming pretty dog-gone fast.' When plaintiff first saw Roemmich's train, it was eight or nine car lengths to the westward. Plaintiff attemped to signal the Roemmich train, and when plaintiff was about the middle of the puzzle, he started up the side of the car-- 'I just went up as fast as I could get up there.' He went up the ladder when the Roemmich train 'started coming through the switch.' Roemmich's train was then going about ten miles an hour. When plaintiff was on the car, he was signaling and 'hollering and yelling.' He was standing near the southeast corner of the top of the fourth car. When Roemmich's train was about a car length and a half away and 'still coming pretty fast,' plaintiff 'thought it best to jump off, so I sat down and scooted off the side of the car. * * * I was just more or less frantic there, I wanted to get off as best I could * * *.' When he struck the ground he was injured, but he crawled southwardly underneath another cut of cars 'in the pocket there, to more or less get out of the way so it wouldn't crush me.' The Roemmich train did not actually collide with plaintiff's train.

(There was testimony that plaintiff had made statements to the effect that he sustained his injury when he jumped between two cars of the cut set in the pocket; and there was testimony that the Roemmich train, at the time, did not proceed more than a car length or so to the eastward of the drill-track switch.)

Defendant-respondent, in urging that plaintiff did not make a submissible case, argues that the mere fact that Roemmich's train did not remain west of the third-rail switch does not prove defendant's negligence, but that, assuming the movement eastwardly on the drill track was negligent, there was no evidence tending to prove the movement might reasonably be expected to injure anybody. It is said the absence of proof of the reasonable foreseeableness of injury necessarily creates an absence of proof of proximate cause between negligence and injury.

It seems the yardmaster's instructions that Roemmich's train was to remain west of the drill-track switch until plaintiff's train had cleared the puzzle was a safety as well as an operational measure. But it is argued by defendant-respondent that the eastward movement of the Roemmich train through the switch could not have constituted actionable negligence, because the testimony of Roemmich, who was plaintiff's witness, was undisputed that his train had moved only a car length or so into the drill track. It is also argued that both plaintiff and Roemmich knew of the positions and of the expected movements of both trains. Consequently, it is said, plaintiff had no reason to act on the supposition that Roemmich's train might be negligently moved farther eastward into threatened collision with plaintiff's train, and Roemmich had no reason to anticipate that plaintiff would act on such a supposition. A difficulty with these arguments, in urging the negative of negligence and proximate causation, is that plaintiff knew the Roemmich train was ordered to remain west of the drill-track switch until plaintiff's train cleared the puzzle in moving around the horn, and yet as plaintiff's train was moving through the puzzle on track No. 3 plaintiff saw Roemmich's...