Briscoe v. Chicago & Alton Railroad Company

• Decision Date: 04 February 1919
• Parties: GUSSIE C. BRISCOE, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY and J. L. CORDER, Appellants
• Court: Missouri Court of Appeals

208 S.W. 885

200 Mo.App. 691

GUSSIE C. BRISCOE, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY and J. L. CORDER, Appellants

Court of Appeals of Missouri, St. Louis

February 4, 1919

Appeal from the Circuit Court of Audrain County.--Hon. James D Barnett, Judge.

AFFIRMED.

Judgment affirmed.

A. C Whitson and Charles M. Miller for appellants.

(1) The trial court erred in not sustaining defendants' peremptory instructions to find for the defendants for the reasons, (a) that the evidence disclosed no negligence on the part of either defendant, causing the death of Briscoe, (b) that deceased Briscoe's negligence was the proximate cause of his death, and (c) that the manner of his death was mere conjecture. Harris v. Railroad, 180 Mo.App 583, 166 S.W. 335 and cases therein cited; Neal v. Railroad, 105 N.W. 197-199; Grant v. Railroad, 190 S.W. 586, and cases therein cited; Swearingen v. Railroad, 221 Mo. 644-656; Warner v. Railroad, 178 Mo. 125-134. (2) The trial court erred in giving plaintiff's instructions No. 1 and No. 4, and in refusing defendants' instructions Nos. 6 to 12, inclusive. Houck v. Railroad, 116 Mo.App. 559-567, 92 S.W. 738; Storage & Moving Co. v. Railroad, 120 Mo.App. 410-413, 97 S.W. 184; Kirkpatrick v. Railroad, 211 Mo. 68-83; Cohn v. Kansas City, 108 Mo. 392, 18 S.W. 973. (3) The trial court erred in admitting over the objection of defendants incompetent evidence, (a) of witness Pimpell, for the reason that it permitted him to set up his own standard of care, state his own conclusion as to what should have been done, deciding one of the ultimate issues, thus invading and usurping the province of the jury, (b) of witness McIntosh, in permitting him to testify as to a mere conclusion, surmise and conjecture, relating to whether or not he afterwards found blood on the knuckle of the coupler. Marshall v. Taylor, 168 Mo.App. 240, 153 S.W. 527-530, and cases therein cited; Glascow v. Metropolitan, 191 Mo. 347, 89 S.W. 915-920; Labbat's Master and Servant (2 Ed.), section 1597, and cases cited thereunder.

Clarence A. Barnes and Fauntleroy, Cullen & Hay, for respondent.

(1) The proof is ample to sustain the conclusion that deceased was killed while adjusting a knuckle as he was in the act of passing to the north track by the defendant starting its engine a second time to make a second effort to couple. Union Stock Yards Co. of Omaha v. Conoyer, 59 N.W. 950; C., B. & Q. Ry. Co. v. Gunderson, 51 N.E. 708; Schlereth v. Mo. Pac. Ry. Co., 115 Mo. 87. (2) Deceased not guilty of contributory negligence by adjusting the knuckle on the standing car or passing over the track and was in no danger by so doing had the defendant not started its engine a second time without notice and run it east when the ordinary and usual movement was west. The case at bar presents facts similar to the facts in judgment in the Kettlehake case, 171 Mo.App. 583, the Weaver case, 170 Mo.App. 284, and the Panebeango case, 227 Ill. 170, all of which cases are cited and approved in the Harris case (see pages 594 and 595, Harris case, 180 Mo. App.). (3) The act of defendant in starting the engine a second time without notice and running it in an opposite direction without notice and contrary to the established custom and without keeping a lookout is evidence of negligence which creates an issue for the jury. Lewis v. Wabash R. R. Co., 142 Mo. 597; Hollenbeck v. Railroad, 141 Mo. 99; Rutledge v. Railroad, 123 Mo. 121, 134; 1 Labatt, Master & Servant, sec. 213a; Penny v. Stock Yards Co., 212 Mo. 309. The system of rules or methods adopted by the master for the conduct of his business forms a part of the contract of hiring and are binding on both master and servant. The violation thereof by the master to the injury of the servant is culpable negligence. I. C. Ry. Co. v. Burton, 79 S.W. 823; Louisville Ry. Co. v. Heck, 17 A. & E. R. Cas. 389; 4 Thomp. Neg. (2 Ed.), sec. 4165; Penn. Co. v. Whitcomb, 111 Ind. 212, 12 N.E. 380; Wharton Neg., Secs. 205-233; Luebke v. C. M. & St. P. Ry. Co., 63 Wis. 91; Sobieski v. St. Paul Ry. Co., 41 Minn. 169; Railway Co. v. Murphy, 50 Ohio St. 135; Railway v. McElyea, 71 Tex. 389, 1 L. R. A. 411. When the master, as is the case at bar, adopts a system of notification of danger, the servant has a right to rely upon such notification, and the master is guilty of negligence if he omits the customary signal. Jordan v. Railroad Co., 202 Mo. 418; Speed v. Atlantic & P. R. Co., 71 Mo. 303; St. Louis & S.W. Ry. Co. v. Rhea (Texas App.), 84 S.W. 428; Barker v. Cinn. N. C. & S. P. R. Co., 21 S.W. 340; Lake Shore R. Co. v. Schultz, 19 Ohio C. C. 639; Ring v. Mo. Pac. Ry. Co., 112 Mo. 220; 1 Labatt, Master and Servant, page 452, sec. 209; Anderson v. Northern Mill Co., 42 Minn. 424, 44 N.W. 315; Anderson v. Ogden Union R. & Depot Co., 8 Utah 128, 30 P. 305; Cincinnati R. Co. v. Barker, 17 Ky. L. Rep. 424, 31 S.W. 482; Britton v. Northern Pac. Ry. Co., 47 Minn. 340, 50 N.W. 231; Evansville Ry. Co. v. Holcomb, 9 Ind.App. 211, 36 N.E. 39; Amato v. Northern Pac. Co., 46 F. 464; Smith v. Atlantic Air Line Co., 132 N. S. 824, 44 S.E. 663; Northern Pac. Ry. Co. v. Craft, 16 C. C. A. 834; 4 Thomp. Neg. (2nd Ed.), secs. 4067 and 4167; The customary method of the defendant in the particular respect in question is always competent to explain the acts of the parties and may be considered on the issue of defendant's negligence and plaintiff's freedom from contributory negligence. St. L. Nat'l Stk. Yds. v. Godfrey, 198 Ill. 288; Bachant v. R. R. Co., 187 Mass. 392; Encyclopedia of Ev., p. 474. The custom, usage or practice shown in this case was proved by the testimony of a person acquainted with the facts, and in every instance it was shown that the person testifying actually had adequate knowledge of the usage as a fact, and he was therefore qualified to testify and state what that usage was. Conner v. Citizens Railway Co., 146 Ind. 430; Shield v. Belt Ry. Co., 87 Mo.App. 644; Lawson Usages and Customs 101; 29 A. & E. Ency. of Law, 401, etc.

ALLEN, J. Reynolds, P. J., and Becker, J., concur.

OPINION

ALLEN, J.--

This is an action by the widow of Walter W. Briscoe, deceased, to recover damages for the death of said deceased, alleged to have resulted from the negligence of the defendants. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff, against both defendants, in the sum of $ 5000; and the case is here on defendants' appeal.

Briscoe was employed by defendant railroad company as a switchman, and was killed on June 18, 1914, while engaged in the line of his duty as an employee of that defendant in its yards at Francis, a short distance east of Mexico, Missouri. He was a member of a switching crew engaged at the time in switching certain cars from a so-called pocket track to what is termed the C. B. & Q. main track. The tracks at this place extend approximately east and west, the pocket track lying ten or twelve feet south of this main track, the west end thereof connecting with the main track at a certain switch. There were various other tracks thereabout with which we are not here concerned. On the morning of the day mentioned this switching crew went to work at about 3:15 A. M. The crew was composed of the engineer, the fireman, one Jordan who was yardmaster or switching foreman, defendant Corder who was the "engine switchman," and the deceased, Briscoe, who was the "field switchman."

Upon this pocket track had been placed, on the previous evening the cars composing a local or "plug" train; and these cars were to be switched to the main track mentioned, in order to make up this local train with the cars in their proper order. The testimony is that when the crew went to work that morning Corder and Briscoe went to the pocket track and uncoupled the safety chains, air hose and whistle hose on the "passenger equipment" on this local train, according to their custom. It appears that certain other cars, with which we are not concerned, were first switched from this pocket track, and that the crew then began to switch the cars composing the local train. As these cars stood upon that track, before any of them were switched, the first car to the west was what is termed a "ladies coach;" the next was coach No. 56; the next was a combination car, No. 775; and the last car was a "C. B. & Q. box car." The ladies coach was switched from the pocket track to the main track, i. e. it was pulled west until it passed upon the main track and beyond the switch, and then, after the switch had been thrown, it was pushed east on the main track to a position a short distance east of its original position on the pocket track. As that car was taken from the pocket track Briscoe "cut the coupling," i. e. uncoupled it from car No. 56 immediately east of it, by pulling a lever or rod which could be operated without going between the cars. It appears that Briscoe then crossed to the north side of the pocket track. It seems that the ladies coach was not coupled to another car on the main track, but simply placed in position, and it is said that Briscoe had nothing further to do with that car. Corder testified, however, that three other cars were switched before the engine came back to get car No. 56 on the pocket track, and that Briscoe assisted in that work. In any event Briscoe's duties took him to some point north of the pocket track, along the main track; and as the engine was returning again to the pocket track to get car No. 56, he worked across that track, to the south side thereof, immediately west of Car No. 56, and proceeded along the south side of the car, to the east end thereof, where his duty required him to be in order to uncouple the car from the car east of it. As the engine proceeded east on the...