Briscoe v. Chicago & A. R. Co.

• Decision Date: 04 February 1919
• Docket Number: No. 15382.,15382.
• Citation: 200 Mo. App. 691,208 S.W. 885
• Court: Missouri Court of Appeals
• Parties: BRISCOE v. CHICAGO & A. R. CO., et al.

208 S.W. 885

200 Mo. App. 691

BRISCOE v. CHICAGO & A. R. CO., et al.

No. 15382.

St. Louis Court of Appeals. Missouri.

February 4, 1919.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Gussie C. Briscoe against the Chicago & Alton Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

A. C. Whitson, of Mexico, Mo., and Chas. M. Miller, of Kansas City, for appellants.

P. H. Cullen, of St. Louis, and C. A. Barnes, of Mexico, Mo., for respondent.

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 $5,000; 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 employé of that defendant in its yards at Francis, a short distance east of Mexico, Mo. 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 Chicago, Burlington & Quincy main track. The tracks at this place extend approximately east and west, the pocket track lying 10 or 12 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. 63; 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. 53, he walked across that track, to the south side thereof, immediately west of car No. 53, 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 pocket track, to take out car No. 56, Jordan and Corder rode on the front thereof.

The evidence shows that it was then about 4 o'clock; that day was breaking, but that there was not sufficient light to enable one to see objects distinctly at any great distance. All of the switchmen carried lanterns. As the engine thus proceeded east on this track, approaching car No. 56, both Jordan and Corder, as they testify, saw Briscoe pass from the north side of the pocket track across that track to the south side: thereof, in front of the west end of car No. 56, and proceed east along the south side of that car. Jordan testified that he last saw Briscoe when the latter was at about the east end of that car. As the engine approached car No. 56, both Jordan and Corder, according to their testimony, signaled the engineer to proceed forward, while they were standing on the front of the engine. The testimony is that the three cars mentioned, standing on the pocket track, were then all coupled together. The engine proceeded forward until it struck the west end of car No. 53, in an effort to effect a coupling with that car. Upon this attempt, however, "they failed to make the coupling," as, it" is said, happens "once in a while." The evidence is not entirely clear as to what was the movement of the cars east by reason of this impact. The engineer testified that car No. 56 moved about 2 feet. Thereupon, it is said, Jordan and Corder busied themselves in adjusting the knuckle at the west end of car No. 56, and when this knuckle was in readiness they signaled the engineer to again proceed forward, without looking to see where Briscoe was. Thereupon the engineer proceeded forward, striking car No. 56 again and effecting a coupling.

During this time neither Jordan nor Corder had seen Briscoe or paid any attention to where he was or what he was After making the coupling they perceived that car No. 56, to which the engine was then coupled, was uncoupled from the car east of it, and separated therefrom by a distantce of perhaps 4 or 5 feet. They thereupon `Signaled the engineer to move west with car No. 56, and it was switched upon the main track. While the engine and car were proceeding east on the main track, it was discovered that Briscoe' was missing, and upon investigation his body was found lying on the north side of the pocket track, at or near the end of car No. 775, which remained on that track. His feet, it is said, were lying near the north rail of the pocket track, his body extending toward the northeast. It was found that his body had been crushed "through the chest," all of the ribs being broken, "both in front and behind, from the second rib down," and that one arm had been broken. It appears that death was instantaneous.

There is testimony that the "buffers" about the platforms of these passenger coaches, which were close together when the cars were coupled, and would come in contact with each other when one car was run against another, were situated at such elevation above the level of the track as to strike a man, standing or passing between them, of average height, as was Briscoe, at about the chest and ribs. And the testimony further shows that it was Briscoe's duty, after uncoupling car No. 56 from the car east of it, to go from that point of the west end of the "ladies' coach," as it then stood on the main track, in order to adjust the knuckle at the west end of that car, if need be, and to see that a coupling was effected when car No. 56 reached the ladies' coach.

Further matters appearing in the testimony will be referred to in the course of the opinion.

I. It is earnestly insisted by learned counsel for defendants, appellants here, that the trial court erred in refusing to peremptorily direct a verdict for defendants. It is argued that, under the evidence adduced, the manner in which Briscoe came to his death is left purely to conjecture and speculation; and that the demurrer should have been sustained on this ground. A consideration of the evidence, however, has led us to the conclusion that the testimony and physical facts shown in the case sufficed to establish, with sufficient certainty, the manner in which Briscoe was killed. When last seen alive he was at or near the east end of car No. 56, on the south side of the pocket track, where his duty required him to be in order to "cut the coupling." His body was found on the opposite side of that track, almost, if not directly opposite the point where he was last seen. He was not run over by a car; on the contrary, the position of his body, the nature of the injuries, and the testimony as to the height of the buffers upon these cars show that he was crushed between these two cars, while in an upright position between them, after he had in some manner moved from the south side of the cars to a point near the northern rail of this track. Such is the irresistible inference from the testimony and the physical facts shown in evidence. Furthermore, there is positive testimony that when the engine first approached car No. 56 all of these cars were coupled together; and, when coupled together, one could not pass between the buffers. Briscoe, last seen on the south side of car No. 56, at about the east end of that car, could not have gone between the cars until after the first impact of of the engine and the uncoupling of the cars at or about that time. And when this physical fact is reckoned with, it is to be legitimately inferred, we think, from all of the facts in evidence, that Briscoe met his death by reason of being caught and crushed between these two cars, in the manner indicated above, when the engine struck car No. 56 the second time. The testimony and the physical facts in evidence suffice,...