Carbaugh v. St. Louis-San Francisco Ry. Co.

• Decision Date: 07 February 1928
• Docket Number: No. 19989.,19989.
• Citation: 2 S.W.2d 195
• Parties: CARBAUGH v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

2 S.W.2d 195

CARBAUGH v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 19989.

St. Louis Court of Appeals, Missouri.

February 7, 1928.

Rehearing Denied February 21, 1928.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Earl D. Carbaugh against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for appellant.

Douglass & Inman, of St. Louis, for respondent.

DAUES, P. J.

This is a personal injury case in which plaintiff recovered a verdict and judgment for $7,500, from which defendant appeals. Plaintiff was a switchman in the employ of the defendant railway company, working in the yards at Chaffee, Mo., where he was severely injured on the tracks on the night of February 19, 1925, by being struck by a baggage car in a switching movement.

The petition contains the following assignments of negligence: First, that defendant saw, or could have seen, plaintiff in a position of danger in time to stop the cars or warn plaintiff of their approach and thus have avoided the injury (this assignment was withdrawn by the court); second, defendant negligently failed to have some one placed at the front end of the moving cars, according to the rules and custom of said yards; and, third, defendant negligently started the cars toward plaintiff without giving timely warning.

The answer is a general denial, with a plea of contributory negligence, charging that plaintiff was an experienced switchman and knew that the cars were being switched, and that notwithstanding such knowledge plaintiff walked on the main track or so close thereto as to be struck by a train of moving cars, and that plaintiff did not look or listen for the approach of said cars.

There is no contention by the pleadings or otherwise that plaintiff was engaged in interstate commerce.

The assignments of error reach to the refusing of the demurrer to the evidence and to the giving and refusing of instructions, and further, that the court erred in admitting evidence on the part of plaintiff as to a certain rule of the company.

Addressing ourselves to the first point, the evidence most favorable to the plaintiff is that plaintiff was working at night as a member of a switching crew. There is a main track running through the yards, and it appears that there was a passenger train due at 1:45 a. m. on the morning of the accident, which ran regularly at that time. This train stopped on this track while the engine was being disconnected, and the coaches of the train remained standing opposite the depot. The cars would stand on the track for 30 minutes, and sometimes for an hour or two, but they had to be moved at least 15 minutes before the next train was due at 3:30 a. m. There was no regular time for the moving of this train, except that it had to be moved by 3:15 a. m., since the cars were on the main track and thus had to be moved before another train could pass. Plaintiff was injured at 2:35 a. m.

To the right of this track was what was known as an east lead track, and just before the time of the injury plaintiff was engaged in getting a caboose in the north end of the yard on a track west of the main line. Plaintiff and the crew went with the engine to the north yard, crossed over the track on which the caboose and a coal car were standing, and coupled onto the north end of the caboose. They then moved over the main track and moved south back onto the main track. This crossover was about 200 feet north of where the passenger train was standing. When the coal car and caboose had been placed on this crossover, the engine was uncoupled, pulled north and then run onto the east lead and pulled south on the east lead track to the south of the crossover switch where the caboose and coal car were standing, the coal car then being next to the engine. When the two cars were drawn south on the east lead track they were pulled south of the switch, from which point plaintiff walked back to loosen the coupling pin between the caboose and the coal car. He did this in the regular way and then ran along the side of the car, holding the coupling pin lever while the car was being shoved north on the east track. The coupling was not turned until he had run with the car for a distance so as to get the momentum of the car to make it possible to loosen the coupling. After making the coupling, he turned the lever loose and passed around to the left of the switch stand and around the end of the timbers on which the switch stood, and as he did so his position was within a foot of the east rail of the lead track on which the passenger cars were standing. He continued to walk slowly to the north. It appears that at that time the conductor was north of him and near where the caboose track leaves the east lead. Plaintiff says he was watching the conductor; that it was his order to do so in order to get his signal for the next movement; that after he had walked about 15 feet north he stopped for 4 or 5 seconds, all the time looking at the conductor for signals, as he testified it was his duty to do, when he was struck by the north end of the passenger train that was being shoved north on the main line by an engine which was attached on the opposite side of the cars.

There was evidence tending to show that it was the custom and practice under such circumstances for a trainman to ride on the north end of the train in order to warn employees who were working in the yard. There was a rule of the company introduced, being rule No. 30, concerning which admission of evidence the defendant complains. This rule requires that "the engine bell must be rung when an engine is about to be moved." There is further evidence that plaintiff knew that this was the rule, and that the employees of the company worked in respect thereto in this particular yard. There is evidence that there was no person at the end of the cars when being moved, and that no bell was rung as the engine started to move same. Plaintiff had worked there for about two years before he was hurt. His injuries were serious and permanent, and no complaint is made about the size of the verdict.

Appellant insists strenuously that the demurrer to the evidence should have been sustained, first, because it is said the railway company owed no duty to plaintiff under the circumstances to warn him, applying the section hand rule, and, again, that plaintiff was guilty of contributory negligence as a matter of law in not looking and thus seeing the passenger coaches as they were moving.

We are of the opinion that the section hand rule does not apply to this situation. Here, we have evidence that the cars are standing still in a yard; they have stood there for some time, and plaintiff could not know, if plaintiff's evidence is to be believed, just when these cars would be moved, except that they would be moved at least fifteen minutes before the next train time, which was two or three hours after the cars were placed. They were subsequently moved without warning, no bell having been rung and nobody on the end of the cars to warn the employees as required by the rules of the company and under the common-law rule. Tetwiler v. Railroad, 242 Mo. 178, 145 S. W. 780; Ostertag v. Railroad, 261 Mo. 457, 169 S. W. 1; Greenwell v. Railroad (Mo. Sup.) 224 S. W. 404; St. Louis & S. F. Railroad v. Jeffries (C. C. A.) 276 F. 73; Brimer v. Davis, 211 Mo. 47, 245 S. W. 404.

In the discussion of the reasoning above, there is involved the question of the admissibility of the rule which was allowed to be introduced against the defendant.

In the Tetwiler Case, supra, there was a printed rule introduced which required the engine bell to be rung when same was about to be moved, which seems to be the identical rule offered in this case. There the court had the following to say with respect thereto:

"The defendant had peculiar duties growing out of its relation to its employees, none of which were more important than that which required it to use reasonable care to furnish them a safe place to work, and in no situation is the performance of this duty more important than in an active railroad yard, where they are constantly menaced by the death-dealing appliances of the master. This necessity was expressed by the Supreme Court of Nebraska in Union Pacific Ry. Co. v. Elliott, 54 Neb. 299, 305 , as follows. `Irrespective of any statute on...