De Clue v. Missouri Pac. R. Co.

• Decision Date: 28 July 1924
• Docket Number: No. 23904.,23904.
• Citation: 264 S.W. 992
• Parties: DE CLUE v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

264 S.W. 992

DE CLUE v. MISSOURI PAC. R. CO.

No. 23904.

Supreme Court of Missouri, Division No. 2.

July 28, 1924.

Motion for Rehearing Overruled October 10, 1924.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Lucian De Clue against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green, H. H. Larimore, and M. U. Hayden, all of St. Louis, for appellant.

Sidney Thorne Able, Charles P. Noell, and Walter L. Brady, all of St. Louis, for respondent.

DAVID E. BLAIR, J.

Action for damages for personal injuries under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Trial by jury resulted in a verdict for plaintiff for $15,000. Defendant has appealed from the judgment rendered thereon.

It was admitted that, at the time plaintiff was injured, he was a member of the crew in the employ of defendant operating a train which was carrying freight interstate. The uncontradicted evidence was that the train, upon which plaintiff was employed as head brakeman, was a local freight, consisting of an engine and 10 or 11 freight cars. It was approaching the town of De Soto, Mo., from the south at about 2 or 3 o'clock in the afternoon of April 15, 1920, when plaintiff was injured. It was intended to head the train in on what was known as the scale track. As the train approached the point of the switch, plaintiff was riding in the engine cab with the engineer and fireman. He climbed out of the cab on the fireman's side and walked forward upon the running board toward the pilot of the engine, and either fell or was thrown off in front of the pilot. He managed to catch hold of some part of the pilot, and thus avoided being run over by the engine wheels. He was dragged 76 or 80 feet by the pilot and very seriously injured. As it is not insisted that the verdict was excessive, the extent of his injuries need not be noticed.

The controversy as to the facts centers around plaintiff's actions and position after he reached the pilot of the engine, and also around the question of whether the emergency brakes were set before or after he fell in front of the pilot. The plaintiff's testimony was that he had reached and was standing upon a step to the right or engineer's side of the pilot, and was giving "come on" signals to the engineer when the emergency brakes were suddenly applied and he was thrown off in front of the engine by the sudden slackening of the speed of the train, and that the momentum of the train caused the engine and train to move forward on the rails with locked wheels. He was thus drawn partially under the pilot.

Plaintiff was corroborated by one Harry Haversack, a teamster, who testified that he heard the noise of the brakes going on, looked up, and saw a fellow going over in front of the engine. J. C. Hopson, manager of a nearby lumber yard, testified that he heard the application of the brakes, and looked and saw plaintiff under the cowcatcher, struggling to get out. He apparently did not see plaintiff fall.

The engineer testified that he saw dust or smoke coming up under the front cylinder of the engine. He then looked for plaintiff in the cab, where he had previously seen him, and then looked on the step of the cab, and then said something about plaintiff being under the pilot, and put on the emergency brakes. As soon as the train stopped he went forward and found plaintiff with his feet over the west rail, and his head over the east rail. Marks between the rails plainly showed that plaintiff had been dragged from 70 to 80 feet. The engineer testified that he did not see plaintiff come out on the fireman's side, and did not know that he had gone to the pilot of the engine, and did not see him on the step on the right side of the pilot, or receive any signals from him.

Defendant's theory was that plaintiff slipped and fell in front of the pilot before he reached the step on the right side thereof. The fireman testified that he saw plaintiff pass forward along the running board on his side of the engine, and disappear around the front. He heard the engineer say, "I believe Lucian (plaintiff) is under the pilot." At the same time the engineer applied the emergency brakes.

Plaintiff testified that he told the engineer and fireman that he was going to the front of the engine. Both engineer and fireman testified that they heard nothing of the sort. It is clear from the testimony that, unless the engineer applied the emergency brakes in the belief that plaintiff was caught under the pilot, there was no necessity for such application of the brakes. Plaintiff claimed that the brakes were applied before he fell, and the engineer claimed that he applied them alter it appeared that plaintiff was under the pilot. The exclamation of the engineer as to plaintiff being under the pilot, testified to by the fireman, tends to support the engineer's contention. There can be no doubt that the brakes were not so applied it response to any signal from the plaintiff.

The petition alleged in substance that it was the usual, established, and regular practice for the brakeman to get out upon the step at the right side of the pilot and give signals, and for the engineer to watch him, and the signals given by him, and to operate the engine in accordance with such signals, and that defendant's employés operating the train knew or should have known that plaintiff had gone forward to take his position on such step, and that they failed and neglected to look out for the plaintiff and act upon his signals and, in violation of such practice, suddenly applied the brakes, locking the wheels so that the train made an emergency stop, causing the plaintiff to be thrown on the ground ahead of the engine, and that the weight of the train caused it to continue to come forward and to injure plaintiff; that no emergency existed, and that defendant's employés had no reasonable ground to believe that an emergency existed.

The answer of defendant was a general denial. It pleaded that plaintiff's injuries were caused by his own negligence, in that plaintiff, voluntarily and in violation of defendant's rule No. 38 of Circular 33, forbidding employés to ride on engine pilots between stations, elected to be and to ride upon said pilot, and while so riding fell or attempted to alight from such pilot and was injured. Said answer also alleged that said injuries were caused by plaintiff voluntarily selecting an unsafe way to do his work when he could have selected a safe method of doing it, to wit, by alighting directly from the engine cab onto the ground, and then proceeding on foot to throw the switch, and that the act of plaintiff, in walking over the running board to the pilot, was not in accordance with any rule, practice, or custom of defendant, and was a dangerous way of doing the work. Practically the same facts are stated in connection with the alleged contributory negligence of the plaintiff and his assumption of the risk.

In his reply plaintiff alleged that, if there was such a rule, as set up in defendant's answer, the same was never in force and was never construed to prohibit the doing of the work in the way plaintiff was doing it, and that, in short, it was habitually disregarded with the knowledge of defendant.

I. I have carefully examined the record and do not find that rule 38 of Circular 33 was put in evidence. That defense, therefore, need not be noticed further. It does appear from defendant's evidence, however that it was not the usual, nor was it regarded as the safe, practice for a brakeman to ride on the pilot step, except when necessary in switching. Both the engineer and fireman, however, testified that the practice was common. The fireman said that method was as common as any other method. The plaintiff testified that such was the usual and habitual practice, and it was clearly a question for the jury whether such was the usual and customary practice." We cannot agree with defendant's contention that the evidence fails to show the existence of such custom under the circumstances in evidence, or that such custom was known to defendant or could have been known to it by the exercise of ordinary care. Plaintiff did not testify in direct words that he relied upon the observance of the practice by the employés of defendant, but the jury was authorized so to find from all the facts which plaintiff's evidence tended to establish. If plaintiff's story is to be given credence, the engineer violated the practice by unnecessarily applying the emergency brakes without a signal from plaintiff. It is not our province to say that plaintiff did not tell the truth about the matter. His testimony constituted substantial evidence as a basis for the finding of the jury.

Nor are we able to agree with defendant's contention that plaintiff's description of the manner in which the accident occurred is so opposed to all physical laws and facts, so improbable and so incredible that the evidence in that respect lacks probative force and should be wholly disregarded by this court. The positive testimony of plaintiff is that he was standing upon the step when the brakes were suddenly applied, and that he was thereby thrown forward...