Clay v. Chicago & Alton R.R. Co.
| Decision Date | 21 December 1886 |
| Citation | 24 Mo.App. 39 |
| Court | Missouri Court of Appeals |
| Parties | ROBERT CLAY, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant. |
APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.
Affirmed.
MARTIN, LAUGHLIN & KERN, for the appellant.
J. D. & C. P. JOHNSON, for the respondent.
This case was before us on a former appeal, and is reported in 17 Mo. App. 629. We there reversed the judgment and remanded the cause. Upon the trial from which this appeal is taken, the plaintiff testified that, at the time of the accident which is the subject of the suit, he was in the employ of Hayner & Company; that he was ordered by them to go to the defendant's station in East St. Louis, Illinois, and unload a car of agricultural implements, consigned to them over the defendant's road and delivered to them on board; that he arrived at the station about 9 A. M., and was shown the car load of machinery by the defendant's agent; that, in conjunction with two other men, Anderson and Stevens, he proceeded to take the machinery out of the car and put it on the depot platform; that he worked at this until noon, when they (the three men) had dinner in the car, the work being unfinished; that Anderson got out of the car upon the platform, which was connected with the car by a small bridge or platform; that at this time he (plaintiff) heard some one call out, “Look out for the platform,” and saw Anderson move this connecting platform and walk away; that Stevens and himself remained in the car; that a few moments afterwards the defendant pulled the car out with a locomotive, pulling it pretty fast some distance to the east, and then moved it again, by throwing it, detached from the locomotive, upon a switch against another car with such force as to throw a large box of machinery in the car in which the plaintiff was, against the plaintiff's leg, breaking it; that he heard no one say that the car was to be moved and that those who were in it were to get out of it. On cross-examination the plaintiff stated that he was sitting on a box near the door when the car first moved; that when it moved he got up and went to the door of the car, and was looking out when it was moved and also when he was injured; that if he had remained sitting as at first the box could not have fallen upon him; that the car was half unloaded at the time; that there were boxes in one end of the car, and in the other end boxes with iron machine wheels placed on them horizontally; that the box that fell upon him was about six feet high and stood on a base of two by three feet in dimensions, and that it weighed about six hundred pounds; that the car was stopped long enough after it left the depot and before it was thrown against the car which it struck for him to have gotten out; that he would have done so if he had not thought the car he was in was to be pulled back to the depot right away, and for the further reason that it would not have been safe for him to get out. Other testimony adduced by the plaintiff corroborated his version of the accident. His companion, Stevens, who was in the car with him at the time of the accident, testified that the car was thrown against the other car with such force, as not only to throw the box down npon the plaintiff, but also to throw down the iron wheels that were upon the boxes in the end of the car, and to throw down other machinery; that the iron wheels that were thus shaken down were lying flat on the boxes, and were about four feet in diameter with tires about four inches broad; that the box by which the plaintiff was hurt rested on a base the dimensions of which were about two by three feet; that the narrow side of this box was fore and aft of the car, that is, lengthwise of the car, and that the box fell on its narrow side.
The defendant produced the testimony of two switchmen employed by it at the place of the accident on that day, one of whom, who seems to have been in command of the others, testified that their duties were, at that time every day, that is to say, between twelve and one o'clock, to pull out the loaded cars from freight house number three of the defendant, and put empty cars in for the afternoon; that he and two switchmen went there with an engine, which had upon it a fireman and an engineer, to pull the loaded cars out and replace them with “empties” (meaning empty cars), and to put the car, in which the plaintiff was, back at the open platform where it was before they moved it; that when they first went there to pull the loaded cars out, one of the men who were unloading machinery in this car asked the witness if they were going to switch the car, and the witness told him, “Yes, and that they (apparently meaning him and his companions) had better get out of the way;” that was all the witness knew about it until they got up in the yard; but witness supposed (meaning supposed at that time) that they all got out of the car. He and his assistants coupled on to these cars and pulled this car in which the plaintiff was, with the others behind it, out from the platform. They put the “Missouri Division” on one track, and the balance, that was to go out on the main line, on another track, except this car. This car they throwed onto some “empties.” They cut it off from the engine and switched it against some “empties” that they wanted at the freight house. The car was not running at the rate of more than two or three miles an hour when it struck the “empties.” About five minutes afterwards some one told the witness that a man was hurt in that car. He went down to see who it was, and found that there were two men in the car, one of whom was pretty badly hurt. Witness also testified that there was a bridge at the time he and his assistants went to move this car, running from its door to the main platform. He could not say whether this bridge was moved or not. There were three men in that car when they went to move it. The witness was within ten or twenty feet of one of them when he told him that they were going to move the car. One of the men was on the platform and two were in the car. Witness had been switching cars for eight or ten years around freight yards and was familiar with the speed with which such cars are usually moved when they are being switched, cut off, and run against other cars. He testified that this car, when it struck the “empties” to which he referred, was not running nearly as fast as cars usually do when they are being switched or cut off. They had to move this car in order to move the loaded cars out and put the “empties” in. The witness also testified that, when they are about to move cars that are being unloaded or loaded at the freight house, they usually notify the men that are loading or unloading them, that they are going to move them, by “hollering” at them, or by telling them, when they are near enough (meaning near enough to tell them). He also stated that they had sufficient force to move these cars safely on that day. The testimony of the other switchman corroborated that of this witness in a general way, except as to the point that notice was given to the plaintiff and to his companions of the intention of the foreman to move the particular car, the witness saying that he was standing eight or ten car-lengths away and did not hear the foreman say anything to that effect to the man who was standing on the platform.
The court submitted the case to the jury, upon an instruction tendered by the plaintiff, drawn in very general terms, to the effect that, if the defendant did not use reasonable care in switching the car and that the...
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