Case v. St. Louis-San Francisco Ry. Co.
| Decision Date | 09 July 1930 |
| Docket Number | 28918 |
| Parties | CASE v. ST. LOUIS-SAN FRANCISCO RY. CO |
| Court | Missouri Supreme Court |
Rehearing Overruled September 4, 1930.
E. T Miller, of St. Louis, and Henry S. Conrad, L.E. Durham, and Hale Houts, all of Kansas City, for appellant.
J. V Jones and Madden, Freeman & Madden, all of Kansas City, for respondent.
This is an action under the Federal Employers' Liability Act (45 USCA §§ 51-59). Plaintiff in her capacity as administratrix of the estate of her husband, George M. Case, and for the benefit of herself and two children, seeks a recovery for his death which occurred in the course of his employment as a switchman in defendant's yard in Kansas City, Kan. It is conceded that at the time of the occurrence which caused the death of the deceased the defendant was engaged in interstate commerce and that he was employed in such commerce.
The facts which plaintiff's evidence tended to show, so far as pertinent to the controversy here, may be briefly stated. The crew of which deceased was a member were engaged in switching a drag of ten or eleven cars in defendant's yard, on the early morning of December 20, 1924, while still dark, though some daylight was beginning to show. It was extremely cold, and the ground was covered with sleet and snow. The switch engine and cars were on a lead track; the engine was headed north, and the drag of cars to which it was attached was north of it. The particular switching operation involved was the kicking of the northernmost car of the drag through a switch and onto another track.
The crew immediately engaged in the operation just referred to consisted of Case, the field switchman, who was at the northern end of the drag; Hale, the head brakeman, who was on the ground some twelve or fifteen feet east of the engine; and the engineer. Under defendant's rules and in conformity with a custom and usage which had long been followed in its yard, Case, as fieldman, was in charge of all switching movements; it was the duty of the engineer to observe and strictly obey his signals; it was Hale's duty to repeat to the engineer Case's signals, if Case was in a position in which he could not be seen by the engineer; it was the engineer's duty not to move the engine and cars except on a signal received from Case, either directly or through Hale; and, if at any time while the engine and cars were moving Case disappeared from the view of both Hale and the engineer, it was the latter's duty to bring the cars to an immediate stop.
The switch track on which the car was to be kicked was on the left or west side of the lead and curved sharply to the left as it left the lead. Case gave a highball, a signal to kick north, and it was relayed by Hale to the engineer (all signals were given with lanterns). In response to the signal, the engineer started the cars northwardly with a quick and rapid movement. He next received a signal to stop, which he obeyed. The northernmost car, the one kicked, rolled through the switch and onto the switch track. It came to a stop two or three car lengths from where the then north car of the drag had stopped. It had not gone far enough on the switch track, however, to afford clearance to cars passing on the lead. In a very few moments Case gave another signal, one to 'come ahead easy'; the purpose being to have the drag push the car which had been disconnected further down the switch track. Immediately after giving the 'come ahead easy' signal, and before the engine and cars had been put in motion in response to it, Case gave a stop signal, and then passed from the east side of the lead around the north end of the cars and out of sight of both Hale and the engineer. The engineer disregarded the last signal, the stop signal, which had been repeated by Hale, and started the cars forward. Hale then gave a 'violent' stop signal, but the cars continued in motion until they reached the car which had been kicked onto the switch track. Case was run over and killed.
The knuckle of the coupling of the car at the north end of the drag, the one to which the kicked car had previously been coupled, was found closed. It may be inferred that Case went around to the end of the car after having given the last stop signal and closed the knuckle so that the car would not automatically couple by impact with the car which had been kicked onto the switch and which was to be pushed further on. The custom and practice of closing the knuckle under such circumstances, and which had to be done by hand, had long been followed in defendant's yard.
The petition charged: 'That defendant was negligent in that said employees on and near the engine caused or permitted said engine and cars without warning to said Case to start and proceed north and run against him at said time without receiving a signal or permission from George M. Case to proceed north and without knowing his whereabouts or that he was in a position of safety contrary to the customs, practices, rules and regulations aforesaid, which were of long standing and in common usage by defendant, its employees and employees of all railroads in and about Kansas City.'
Under plaintiff's principal instruction the jury were required to find, as the predicate of defendant's liability, the facts substantially as hereinbefore detailed, and in addition thereto that the engineer was negligent in failing to observe and obey the last stop signal given by Case.
The jury returned a verdict for plaintiff, assessing her damages at $ 25,000. From a judgment entered in accordance therewith, defendant prosecutes this appeal.
Appellant's first contention is that the court below should have directed a verdict for it, and for these reasons: (1) 'There was a failure of proof of any negligence charged against the defendant by the petition;' and (2) 'the evidence did not entitle plaintiff to recover upon the theory submitted by her and the only possible theory presented by the evidence.'
1. It is claimed that plaintiff's proof showed, if anything the negligent violation by the engineer of a stop signal given by Case, and that no such negligence was pleaded. The petition, after setting forth the rules, customs, and practices heretofore referred to, alleged in effect that the engineer started the engine and cars north without any signal from Case to do so, and when he did not know Case's whereabouts. The proof was that the 'come ahead easy' signal given by Case was followed almost immediately, and before it was acted upon, by a stop signal also given by him, and that Case then went out of the view of both the engineer and Hale. The effect of the stop signal was to cancel...
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