Clark v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 26 August 1937
• Docket Number: No. 34577.,34577.
• Citation: 111 S.W.2d 168
• Parties: CLARK v. TERMINAL R. R. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

111 S.W.2d 168

CLARK v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 34577.

Supreme Court of Missouri, Division No. 2.

August 26, 1937.

Motion for Rehearing Overruled December 17, 1937.

Appeal from St. Louis Circuit Court; J. W. McAfee, Judge.

Action for damages under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, by Len Clark against the Terminal Railroad Association of St. Louis. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

C. O. Inman, of St. Louis, for respondent.

COOLEY, Commissioner.

Action for damages for personal injuries, under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. It is conceded that said act applies and governs. Plaintiff was an employee of defendant, working in its yards in St. Louis. He was struck by the tender of a Wabash engine, his right foot being cut off and other injuries inflicted. He recovered judgment for $15,000, from which defendant appealed. The Wabash Railway Company, through its receivers, was operating over the terminal's tracks through a working agreement. No point is made that defendant is not liable, if there is liability. Appellant, defendant below, urges but one ground for reversal, viz., alleged error in instruction No. 4, given at the request of plaintiff. There was evidence tending to show the following:

Defendant owns and operates extensive switchyards at and near Union Station in St. Louis. Plaintiff, at the time of his injury, was engaged in oiling switch points on track No. 56, sometimes referred to as the "inbound main line," leading (eastward at that place) to Union Station, and was struck and injured while so engaged. The accident happened between 11 a. m. and 12 o'clock on a clear December day. The track was in good condition. Plaintiff had started work at a point west of where he was injured and was working eastward. He was between the rails of track 56, which was the customary and most practicable method of doing his work, since he had to clean and oil switch points on both the north and south rails of said track. He had oiled the switch points at the south rail (there was a "cross-over" track at that place between said track 56 and an adjacent track) and had turned to oil the switch points at the north rail. Before doing so, he looked to the west and saw no engine or train in view. He had been engaged in his work at the north rail for half a minute or more when he heard a little sound of some kind and "looked around" and discovered the Wabash engine "right at him." He jumped to the north, but it was too late.

The Wabash engine, with its tender to the east of it but with no cars attached, was backing eastward on said track 56. On the engine there were only the engineer and fireman, each at his accustomed post, the engineer at his window on the north side of the cab, the fireman on the south side. Both, according to their testimony, were keeping a lookout for trackmen as they backed eastward and did not see plaintiff before he was struck. The engine was moving 8 to 12 miles per hour and could have been stopped in 12 feet. The track was straight and with no obstruction to the view for a distance of about a quarter of a mile west of the point where plaintiff was hurt. The engineer testified that from his position in the cab he could see the center of the track (having to look around rather than over the tender) about 60 feet east of the tender and could see the north rail about 32 feet east of the tender. Plaintiff's evidence shows that while oiling the switch points at the north rail, he was near that rail and somewhat north of the center of the track.

It was shown by undisputed evidence on both sides to have been a well-established custom for men in charge of locomotives and trains in defendant's yards to keep a lookout for men who might be working upon or about the tracks; to keep the bell of the locomotive ringing at all times when the locomotive was in motion; and if a man was seen in a position of danger to warn him by sounding the whistle and to stop, if necessary, to avoid injuring him. Defendant also had a rule requiring those in charge of locomotives and trains to keep a lookout for trackmen and employees in the yard and to keep the engine bell ringing when the engine was moving. Plaintiff knew and relied upon said custom and rule. His evidence tended to show that while working, as he was, with his back toward the west, he could not, without impeding his work, keep looking back for possibly approaching engines or trains; that he had looked west before going to work at the north rail and there was then no engine in sight; that as he worked at the north rail he was listening for engine bells, as he always did, but that no bell was rung or other warning given. Another witness testified that the bell was not rung. It is conceded no other warning was given. Defendant's evidence tended to show that the bell was ringing, a disputed question of fact which the verdict resolved in plaintiff's favor.

Plaintiff's petition alleged that his injuries were caused by defendant's negligence "in the following respects": It then enumerated the acts of negligence complained of, in 6 separately numbered paragraphs, but all in 1 count. Paragraph 1 charged failure to ring the bell, in violation of the custom and rule requiring it to be kept ringing; paragraph 2, failure to give any warning of the approach of the locomotive; paragraph 3, failure to keep a lookout and failure to warn, as required by custom and rule, which custom and rule were therein pleaded; paragraph 4, failure to have a person riding as a lookout upon the east end of the tender, as engine and tender backed through the yard, in violation of an alleged custom and rule; paragraph 6, excessive speed; and paragraph 5, predicated upon the humanitarian doctrine, as follows:

"That the agents and servants in charge of said locomotive saw, or by the exercise of ordinary care, would have seen the plaintiff working on said track, in a position of imminent peril and likely to be struck by said locomotive, and oblivious of his danger, in time thereafter, with safety to the said engine and the persons in charge thereof, by the exercise of ordinary care, to have stopped the said engine, checked its speed, or given timely and adequate warning to the plaintiff of its approach and thereby have avoided striking and injuring the plaintiff, but negligently failed to do so."

Plaintiff's instruction No. 4, of which complaint is here made, reads:

"The court instructs the jury that if you find and believe from the evidence in this case that on December 7th, 1933, plaintiff was in the employ of the defendant as a trackman, and if you further find and believe from the evidence that while in the discharge of his duties for the defendant and while standing upon and cleaning and oiling the switch points of track No. 56 mentioned in the evidence he was struck by the tender of a Wabash locomotive and run over and injured by said tender and locomotive as said tender and locomotive were being backed eastwardly upon the track aforesaid, and, if you further find and believe from the evidence that at said time and long prior thereto there was in existence and effect in said yards of the defendant a uniform custom and practice of persons operating locomotives on said track to look out for trackmen, including the plaintiff, and to exercise ordinary care to warn such persons by bell or whistle and to stop said locomotives if such trackmen were in a position of imminent peril of being injured by said locomotives, and that at the time plaintiff knew of and relied upon said custom and practice; and, if the jury further find and believe from the evidence that as said Wabash locomotive and tender were being backed eastwardly on said track approaching plaintiff he came into a position of imminent peril of being struck and injured thereby and was oblivious to his said peril, and that the engineer in charge of and operating said locomotive saw and knew, or by the exercise of ordinary care on his part could have seen and known, that plaintiff was in such position of imminent peril and oblivious thereto, and that he could thereafter, by exercising ordinary care with the means and appliances at hand and with safety to persons on said locomotive, have stopped the said locomotive and tender or given a timely and adequate warning to the plaintiff with the bell or whistle thereof and thus and thereby have prevented the injuries to plaintiff, and that said engineer failed to so stop said locomotive or give such timely and adequate warning, and that his failure so to do was negligence, as that term is defined in these instructions, and that plaintiff's injuries were directly caused in whole or in part thereby, then your verdict must be in favor of the plaintiff and against the defendant, Terminal Railroad Association of St. Louis."

Said instruction No. 4 authorized a finding for plaintiff if the engineer saw or by the exercise of ordinary care could have seen him in a position of imminent peril and oblivious thereto in time thereafter to have taken effective steps to avoid injuring him. In short, it submitted discoverable as well as discovered peril. Appellant asserts that trackmen, such as plaintiff in this case, are under the duty to look out for their own safety; that an engineer is not required to keep a lookout for them in the ordinary operation of trains; that the engineer may assume that they will timely remove themselves from a place of danger and that the engineer is required to take steps to protect a trackman only after he discovers that such trackman is oblivious of his danger and is not going to retire to a place of safety. A number of cases are cited holding, in...