Brannock v. St. Louis & S. F. R. Co.

• Decision Date: 18 January 1910
• Citation: 126 S.W. 552,147 Mo. App. 301
• Court: Missouri Court of Appeals
• Parties: BRANNOCK v. ST. LOUIS & S. F. R. CO.

126 S.W. 552

147 Mo. App. 301

BRANNOCK v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

Rehearing Denied March 8, 1910.

1. MASTER AND SERVANT (§ 285) — ACTIONS FOR INJURIES TO SERVANT — QUESTION FOR JURY.

In an action against a railroad company for the death of a switchman, the question whether his injury was caused by catching his foot between the main rail and the guard rail held, under the evidence, for the jury.

2. MASTER AND SERVANT (§ 289) — ACTIONS FOR INJURIES TO SERVANT — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE.

An employé who goes between cars joined by link and pin to couple or uncouple them is not necessarily guilty of negligence as a matter of law, but whether such act is negligence or not depends on its coincidents.

3. MASTER AND SERVANT (§ 240) — CNTRIBUTORY NEGLIGENCE OF SERVANT — DISOBEDIENCE TO RULES OR ORDERS.

Where cars are equipped with devices so that they may be coupled and uncoupled without going between them, and a switchman in violation of the rule goes between them to uncouple them, he is negligent, barring recovery for injury, but if he is prevented in some way from using the coupling device, and then goes between the cars, the propriety of the act is determined according to the principles which would apply if no safety device had been furnished.

4. TRIAL (§ 306) — DELIBERATION OF JURY — EVIDENCE.

Where there is evidence on an issue of fact, the truth is to be found from the evidence, and not presumed, as in the absence of evidence.

5. EVIDENCE (§ 591) — CONCLUSIVENESS.

Testimony of a party's witness is not conclusive against him if there is countervailing evidence, or for any reason the jury has cause to believe the contrary.

6. MASTER AND SERVANT (§ 281) — ACTIONS FOR INJURY TO SERVANT — EVIDENCE — SUFFICIENCY.

In an action for the death of a servant, evidence held to show that he made a reasonable

effort to uncouple cars from the outside before going between them.

7. MASTER AND SERVANT (§ 289) — ACTIONS FOR INJURIES TO SERVANT — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for the death of a switchman by being run over while between cars in the act of uncoupling them, the question of his negligence in going between the cars held, under the evidence, for the jury.

8. MASTER AND SERVANT (§ 240) — CONTRIBUTORY NEGLIGENCE OF SERVANT — PROXIMATE CAUSE OF INJURY.

If a switchman was negligent in going between cars to uncouple them, and his injury was caused by catching his foot between the guard rail and the main rail which was not blocked as required by law, his negligence contributed to his injury and he could not recover.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by Lona Brannock against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 200 Mo. 561, 98 S. W. 604, 118 Am. St. Rep. 695.

James Orchard, W. F. Evans, and W. J. Orr, for appellant. Ralph Wammack and N. A. Mozley, for respondent.

GOODE, J.

Plaintiff's former husband was killed by one or two of defendant's freight cars running over him on January 10, 1903. The deceased was then and had been for four or five months a switchman in defendant's railroad yards in the city of Cape Girardeau, and it was part of his duty to couple and uncouple cars while trains were being made up or changed on the tracks in the yards. In the performance of this duty he attempted to uncouple 2 freight cars from a train of 11 cars which was in backward motion at the rate of four to six miles an hour, and held together by couplers with lever attachments that could be reached by an employé and manipulated so as to uncouple cars without going between them, as the lever extended to within three or four inches of the outer edge of the car it was on. Those cars were in motion, and the evidence tends to show plaintiff walked from 6 feet to 20 yards by the side of the cars with his left hand on the lever, before going between them, then caught hold of a handhold, and stepped or jumped on the brake beam of the front car. His feet slipped from the beam, and he walked a few steps, or, as one witness said, "trotted," following the front car, when he sank down or was jerked down, fell across the guard rail or frog, and the car in the rear ran over his left foot and thigh, crushing his arm and left thigh, and injuring his head and left foot, so he died in a few hours. A fellow employé (White), who was near deceased and saw his peril, shouted a warning to him that he would run into the frog or guard rail. This man was the one who saw most of the tragedy, and was introduced by plaintiff. Among other things he testified it was unnecessary for deceased to go between the cars to uncouple them with the lever, and deceased was not in the line of duty when he went between them. This witness, who was in authority over deceased, was 10 or 15 feet away and thus describes the accident: "We was at the south of what we call the track lead, and was backing toward track No. 7, that crossed this Gulf track, and Jase was standing there, and I told him to cut off two cars and he caught hold of the lever and run along five or six feet, and dropped the lever and caught hold of the handhold, and put his feet on the brake beam, and his feet slipped off the brake beam. And I says, `Look out, Jase, you will get your feet in that frog,' and he was trying to get his feet away from the wheels, and he fell kinder on his hands and knees; and I saw the wheels was going to run over him and I turned around. Q. Did he take any steps after his feet slipped off the brake beam? A. It looked like he went four or five feet with his right foot wobbling along the ground or rail, trying to get his feet away from the wheels." One witness said just before deceased slipped off the brake beam he "had his left hand a hold of the pin lifting rod to cut the cars, and had the right hand upon the grip iron." The accident occurred in daylight at the intersection of two tracks, where there are what are termed "frogs" at the junction of the rails and a guard rail running parallel to the outside rail. This guard rail is sometimes called a "frog," too, though technically a frog is a different contrivance. The guard rails are probably 12 or 14 feet long and placed by the side of the main outside rails of the track, with a space 2½ to 4 inches wide between the two for the flange of the car wheels to run in. Each end of the guard rails is flared so as to make the distance between it and the outside rail wider at the ends for a foot or a foot and one-half, than is the space between the two rails where they run parallel to each other. When help reached deceased he was lying across the rails with his head and feet west of the west rail. His left shoe had two streaks of rust about three inches long, three-quarters of an inch above the sole and on either side. There was also a crease on the inside edge of the sole under the instep, and "the spur piece was cupped up." Another witness said the sole was cupped and torn loose at the heel from the upper, and the marks on the upper were like they had been made by the balls of the rails. Witnesses differed as to the injury to the foot. Plaintiff swore it was mashed as flat as her hand, and another witness said it was mashed in at the instep; but the doctors said there was only a hole one could stick a finger in on top of the foot behind the third toe and reaching to the bone. The theory of plaintiff's case is that her husband, after his foot slipped off the brake beam and while he was walking along the track, struck the toe of his left shoe between the guard rail and the main rail and it hung there, causing him to be jerked down as the car he was holding to moved on, and the car behind immediately ran over him. The space between the guard and the main rail was not blocked as the statute required, and this neglect is the main complaint of the petition, it being alleged deceased's left foot caught in said space. In defense a general denial was pleaded; also negligence on the part of deceased which contributed to his injury, in carelessly, unnecessarily, and against defendant's rule stepping and walking between the cars while they were moving from four to six miles on hour, and carelessly permitting his foot to strike against the end of the guard rail. The cars deceased was working with were moving southward at the time on the west track of defendant's right of way, and, at the instant he fell or was jerked down, he was walking with both feet between the rails of the track, or with his right foot on the ties on the outside of the west rail and his left foot inside the west rail; the testimony would support a finding either way. No witness testified positively the deceased caught his foot between the guard rail and the main rail and was thereby thrown down, but circumstances are relied on to prove he did. It is the contention of defendant his foot did not catch, but when his feet slipped off the brake beam, he followed the front car, still clutching the handrail, until he stumbled from striking his foot against the end of the guard rail. A more accurate statement of the position of defendant's counsel in this connection is there was nothing in the evidence tending to prove deceased was run over in consequence of his foot hanging in the guard rail. It is their further contention it was a negligent act to go between the cars to uncouple them, inasmuch as this could be done by manipulating the lever from without, and the cars were constructed in that manner to enable employés to couple them from the outside; further, that said act of negligence contributed to cause the casualty. Several witnesses gave testimony conducing to prove deceased did not catch his foot in the open frog, but fell from slipping off the brake beam while he was standing on it, or as he endeavored to jump on it.

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