Brickey v. St. Louis Merchants Bridge Terminal Ry. Co.
| Decision Date | 04 March 1924 |
| Docket Number | No. 23865.,23865. |
| Citation | 259 S.W. 476 |
| Parties | BRICKEY v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.
Action by Joel L. Brickey against the St. Louis Merchants' Bridge Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
J. L. Howell and W. M. Hezel, both of St. Louis, for appellant.
Eagleton & Habenicht, of St. Louis, for respondent.
Statement.
On January 21, 1921, plaintiff sued the Terminal Railroad Association of St. Louis, corporation, Thereafter an amended petition was filed, in which the St. Louis Merchants' Bridge Terminal Railway Company was made a defendant. Prior to the taking of testimony herein, plaintiff dismissed as to the Terminal Railroad Association of St. Louis, and the case was tried against the other defendant. Plaintiff sued for damages sustained by him on account of a personal injury while employed as a switchman by appellant.
The petition alleges: That defendants are Missouri corporations, engaged in operating trains and switch engines in their terminal yards, known as Carrie Avenue yards, located in the city of St. Louis, Mo. That at all times hereafter mentioned defendants were common carriers by railroad, engaged in commerce between various states of the United States and various other states of the United States. That on and prior to November 15, 1920, plaintiff was in the employ of defendants as a switchman, or pin puller, at the Carrie Avenue yards aforesaid. That while thus employed within the line and scope of his employment he was required to do work in conjunction with the handling of various freight cars which were being moved and hauled by defendants as interstate shipments, and which were at the time plaintiff was injured, as hereafter set out, being moved and hauled by defendants in furtherance of their interstate commerce business. That while plaintiff was thus engaged he was seriously and permanently injured, through the negligence and carelessness of the defendants, in this, to wit: First. That defendants negligently and carelessly failed to equip their cars with couplers coupling and uncoupling automatically by impact without the necessity of men going between the ends of the cars, in violation of the laws of the United States, of the Safety Appliance Act of March 2, 1893, 27 Stat. at L. 531, c. 196, as amended by Act March 2, 1903, 32 Stat. at L. 943, c. 976 (U. S. Comp. St. § 8605 of seq.), so that at the time plaintiff was injured it was necessary for him, in the performance of his duties as switchman, in attempting and in order to properly uncouple the said cars to go between the ends of same. Second. That defendant negligently and carelessly ordered, directed, and required plaintiff to go between the ends of said cars, in order to close a knuckle, used in the coupling and uncoupling of said cars. when the defendants knew, or by the exercise of ordinary care on their part could have known, that in thus attempting to close said knuckle plaintiff was likely to be injured by the movement of said cars. Third. That said defendants negligently and carelessly failed and omitted to warn the plaintiff that said cars were about to be moved, so that he might have obtained a place of safety prior to the movement of said cars. Fourth. That defendants negligently and carelessly caused, suffered, and permitted said cars to be moved without a proper signal, when in the exercise of ordinary care on their part defendants should have maintained said cars in a stationary position until proper signals for the movement thereof were given by the plaintiff, or his fellow employees. Fifth. That defendants negligently and carelessly failed to use ordinary care to promulgate reasonably safe rules and regulations pertaining to signals when parties, and particularly the plaintiff, were required to go between the cars, so as to prevent the movement of said cars when the safety of the plaintiff was endangered between said cars. And plaintiff states that, by reason of the negligence and carelessness of said defendants, he was seriously and permanently injured. Then follows a detailed statement of plaintiff's injuries, etc., and the petition concludes with a prayer for judgment in the sum of $40,000 and costs.
Appellant in its answer to the amended petition denied every allegation therein. The answer further alleges that whatever injuries plaintiff may have sustained were the result of risks, hazards, and dangers usual, ordinary, and incident to the work in which he was engaged, or were the result of risks, hazards, and dangers that were obvious, or which were known to plaintiff, and could be appreciated by him. Further answering, defendant says that whatever injuries plaintiff may have sustained were the result of his own carelessness and negligence in going between the cars to close a knuckle of a coupler, when the cars were about to come together, and without his having given a stop signal' or a signal to keep the cars motionless. Further answering, defendant says that whatever injuries plaintiff sustained, if any, were the result of his own carelessness and negligence in stepping between two cars to close the knuckle of a coupler of one of them during a switching operation, contrary to a rule of his employer governing such practice.
No reply was filed, but the case was tried as though a general denial of the new matter in the answer had been pleaded.
As appellant is contending that its demurrer to the evidence at the conclusion of the case should have been sustained, it becomes necessary to determine whether plaintiff produced substantial evidence sustaining the charges of negligence on which the cause was submitted to the jury.
Joel P. Brickey, the plaintiff, testified, in substance, that at the date of trial he was 27 years of age; that on November 15, 1920, he was in the employ of the St. Louis Merchants' Bridge Terminal Railway Company; that he was injured in the Carrie Avenue yards of defendant about 2 o'clock in the morning of above date; that he was a member of a switching crew, of which Mr. Walden was foreman and Mr. Jones was another switchman; that the engineer and fireman were also members of said crew; that he (plaintiff) had been in the employ of the company for about 5 months; that the crew had been switching out cars, and the engine, at the time of the accident, was attached to a train of 10 or 12 cars; that the track on which the accident occurred, and on which the cars were located just previous to plaintiff's injury, ran north and south, and the engine was on north end of same with the tank or tender end attached to the cars; that it was the purpose of the crew to have said cars moved southwardly, to cut off either one or two ears, and let them roll into the track to which they were destined; that it was the particular duty of plaintiff "to pull pins," which meant to uncouple the cars; that the uncoupling of same is ordinarily done by riding on the stirrup of a car, and lifting up the pin while so doing with your hand; that some of the cars of said train had been cut off; that after the last cut the train moved onto this track, and the cars were stopped when plaintiff lifted or pulled the pin; that as said cars were coming to a stop plaintiff jumped from the stirrup of above car on which he had been riding to the ground, and gave his lantern a swing, which was a stop signal; that he then lifted the pins, and, as the cars separated, and while they were stopped, he went in to close the knuckle; that this stop signal was a vertical swing back and forth of his lantern; that after such a signal is given the cars should be made to stop until another go ahead signal is given; that when he (plaintiff) gave the above signal he was standing outside of the ears he was to cut off, right at the end of the cars; that the foreman was south and a little east of where plaintiff was standing; that he could see the foreman and the foreman could see him; that his signal was given to the foreman; that the cars were standing still when plaintiff went between them; that in order to close the knuckle plaintiff had to step clear in between the cars up to the knuckle, take hold of the latter with the palm of his hand, and shove it until it clicked and locked; that while he (plaintiff) was closing the knuckle his lantern was hanging on his left arm at the elbow joint; that the lantern was not visible from outside of the cars; that a signal was given and the cars backed up on plaintiff's arm; that he had to run 15 or 20 feet, in between the cars, before he could get out with his arm; that the cars then came to a stop, and he got out; that his arm was caught between the knuckles; that he threw his lantern in the air, yelled, and whistled; that he guessed a stop signal was given, and the train came to a stop; that just before this cut was made plaintiff made a cut, and it stuck; that the foreman told him "to close the knuckles on the cars; that would save time;" that after this conversation with the foreman, plaintiff closed the knuckle on the car that was cut off just preceding this cut. Plaintiff here described his injuries to the jury. It was conceded that at the time of plaintiff's injury he and the other members of said crew were engaged in handling cars in furtherance of interstate commerce business.
On cross-examination, plaintiff testified, in substance, that he was going to cut off two .cars, and rode on the car next to the last one from the engine; that he was on the tenth car from the engine when the movement was made out on this...
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