Edington v. St. Louis & S. F. R. Co.

• Decision Date: 14 May 1907
• Citation: 102 S.W. 491,204 Mo. 61
• Court: Missouri Supreme Court
• Parties: EDINGTON v. ST. LOUIS & S. F. R. CO.

102 S.W. 491

204 Mo. 61

EDINGTON v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. MASTER AND SERVANT—INJURIES TO SERVANT —ACTION—BURDEN OF PROOF.

In an action for injuries to a servant, the burden of showing contributory negligence is on defendant.

2. SAME—QUESTIONS FOR JURY.

In an action for injuries to a brakeman while coupling cars, held a question for the jury whether he had selected a dangerous method of making the coupling when a safer one was apparent to him.

3. SAME—FAILURE TO WARN SERVANT.

It was negligence for a yardmaster directing the making up of a train to fail to notify a switch crew that the train would be moved by the road engine while certain coupling work was being done; it being customary for the train to be moved at such times only by the switch engine.

Appeal from Circuit Court; Jefferson County; Frank R. Dearing, Judge.

Action by Nathaniel Edington against the St. Louis & San Francisco Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. F. Parker and John W. Booth, for appellant. A. R. Taylor, for respondent.

BURGESS, J.

This is an action for damages for personal injuries sustained by plaintiff on the 6th day of February, 1902, while in the service of defendant as a switchman in the yards of defendant in the city of St. Louis. The trial resulted in a verdict and judgment for $8,000 in favor of plaintiff. After unsuccessful motions for a new trial and in arrest of judgment, defendant appealed.

The petition, in substance, stated that the defendant at the time alleged was a corporation by virtue of law, and used and operated the railway and engines and cars mentioned in the petition as a steam railroad in the city of St. Louis; that on the 6th day of February, 1902, at the yards of defendant on Chouteau avenue, east of Tower Grove avenue in said city, plaintiff was in the service of defendant as a switchman, and a part of his duties as such was to couple and uncouple engines and cars. That on said day, about 9:45 p. m., the defendant's agent and yardmaster ordered and commanded the plaintiff to couple the engine and caboose with which he was working to a caboose car attached to another train and detach it therefrom, and remove it from the track on which it was; that, in obedience to such order and command, the plaintiff and his fellow employés, with said engine, was proceeding to so couple said engine and caboose to said caboose car, and whilst the plaintiff was in the work of making said coupling defendant's servants in charge of the train to which said caboose car was so attached negligently caused said train to be backed without any notice to plaintiff thereof, causing the plaintiff's right arm to be caught between the coupling apparatus of said caboose cars and to be so crushed as to necessitate its amputation, requiring two amputations of said arm; that the defendant's said agent and yardsmaster was negligent in ordering said train to be backed whilst the plaintiff was engaged in making said coupling, without any notice to plaintiff, which said negligence directly contributed to cause the plaintiff's said injuries; that by his injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind, has been permanently crippled and disabled, and has lost and will lose the earnings of his labor and avocation as a switchman, has incurred and will incur large expenses for medicines, medical and surgical attention, to his damage in the sum of $25,000, for which sum he prays judgment. Defendant's answer consisted of a general denial, a general plea of contributory negligence, and a general plea of assumption of risk.

It appears from the evidence that plaintiff was an experienced switchman, and as such was employed by the defendant in its Chouteau avenue yards in the city of St. Louis. Said yards were switch yards, used for making up trains to go out on the main line. Besides the main track, there were five other tracks, called "switch tracks," branching off from the main track at various intervals, and used for making up trains. One of these tracks led to the scales for weighing cars, and was called the "scale track." The others were known as "tracks Nos. 1, 2, 3, and 4." The general direction of all said tracks was east and west. On the night of February 6, 1902, plaintiff was one of a switching crew of four men employed in making up a freight train of some 25 or 30 cars on said track No. 1; the other members of the crew being Tom O'Hara, foreman, Gus Langhoff, and Neal McDaniels. The train was about ready to leave the yards when the fact was communicated to James Glaslier, the night yardmaster in charge of the yards, that the air apparatus of one of the cars about midway in the train was defective. He immediately ordered that the car be taken out and kicked on the scale track, saying, "I will ride it down and have it on the hind end by the time you get coupled up." In order that the defective car might be placed at the rear or east end of the train, it was necessary to remove the caboose car from that end and place the "bad air car" between it and the train. About the time the above order was given by the yardmaster, it would appear that the switch engine and plaintiff and McDaniels were on the scale track, and the yardmaster gave them an order to go to the rear end of the train, take the caboose off, bring it against the scale track, and pick up a car that would be placed there by the road crew of the train, and then...