Foster v. Davis

Citation252 S.W. 433
Decision Date06 April 1923
Docket NumberNo. 23478.,23478.
PartiesFOSTER v. DAVIS, Director General.
CourtMissouri Supreme Court

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

Action by Walter T. Foster against James C. Davis, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed on condition that remittitur be entered.

James P. Green, E. H. Larimore, and M. U. Hayden, all of St. Louis, for appellant. Sidney Thorne Able and Charles P. Noell, both of St. Louis, for respondent.

Statement.

WOODSON, C. J.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiff against the defendant to recover the sum of $75,000 damages for personal injuries, alleged to have been received by him through the alleged negligence of the defendant.

The trial resulted in a verdict for the plaintiff in the sum of $22,500. On motion for a new trial having been filed, it was overruled upon condition that the plaintiff would enter a remittitur of $7,500, which he did, and thereupon judgment was entered for him in the sum of $15,000, and in due time and proper form, the defendant appealed the cause to this court.

The pleadings are unassailed, so we may put them aside as immaterial in so far as this appeal is concerned, except to say the case was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) and the Safety Appliance Act, in regard to an inoperative coupler.

The Facts—At the time of his injury the respondent was about 29 years of age. He was 31 years of age at the time of the trial. He was in the employ of appellant as a switchman and had been a switchman for nearly 3 years. He was injured while working at the yards of the Missouri Pacific Railroad company at Dupo, in the state of Illinois. At that time he was a member of a switching crew, consisting of one Frye, the foreman, one LeTempt, and respondent, switchmen, and an engineer and fireman. He was engaged in assisting to switch a string of 13 cars onto a certain track, referred to in the evidence as track 3, where certain of the cars were to be spotted, preliminary to being repaired. In shoving these cars in on track 3, the movement was towards the north. The engine was at the south end of the string of cars, headed north, and pushing them, and in such position that the engineer was on the right-hand, or east, side of the engine.

Respondent's position was that of head man, or the man farthest from the engine. It was his duty to uncouple the cars and "make the cuts" at the end of the train farthest from the engine. In moving in on this track, respondent rode on the north end and on the east side, or at the northeast corner of the car farthest to the north. The cars and engine, at the time of his injury, were moving at a rate of speed of two or three miles an hour. The car farthest to the north, and the one on which he was riding as the cars proceeded along this track, was known as "Pennsylvania car." Immediately to the south of It and coupled to it was what is known as "M., K. & T. car." The pin lifter on the Pennsylvania car was so placed as to be possible of operation only by one on the left-hand, or west, side of the train, whereas the pin lifter on the M., K. & T. car could be operated only by one on the right-hand, or east, side of the train.

When the train had reached a point about five or six car lengths south of the north end of the track, respondent got off the front end of the forward car and came back to the rear end of that car, preparatory to cutting that car off. As he got off the car, and got on the rear end of it as it came along, and while riding on the first car, he attempted to uncouple that car by operating the pin lifter, forming a part of the equipment of the M., K. & T., or second, car. He testified that he gave the pin lifter three or four jerks without effecting the uncoupling of the cars, and that thereupon, while the train was still moving, he stepped between these two cars for the purpose of operating the pin lifter on the other cars and while walking along between them he stepped upon an obstruction which after' wards proved to be a piece of pipe lying on the ground, which caused him to fall between the cars, and the wheels of the front, or north, truck on the east side of the M., K. & T. car passed over his left leg, injurying if so that it was necessary to amputate it.

The track on which these cars were being moved is described in the evidence as the "rip track," by which is meant a repair track, or one on which cars were switched to be repaired. The piece of pipe upon which respondent stumbled, or tripped, is described as a piece of line pipe, or the pipe that connects the hose to the air pipe used in railroading. It was about an inch in diameter and six or seven inches long, something similar in appearance to a piece Of gas pipe. Respondent did not see the pipe, did not attempt to testify to its exact position with reference to the rails, and was unable to state whether his left foot or right foot came in contact with it. His fellow workman, LeTempt, who reached the scene immediately after the accident, saw the pipe, and, at that time, it was outside, or east, of the east rail of the track. The testimony introduced by appellant indicates that no defects were observed in the couplers or pin lifters of either car by tests made right after the accident.

At the time of his injury respondent was earning $5 a day, working seven days a week, with very little, if any, extra pay for overtime. At the time of the trial he was able to wear an artificial foot, and was employed as an elevator operator in the Arcade Building, in St. Louis, earning $70 a month.

Only two witnesses testified for respondent viz., LeTempt and respondent himself. At the conclusion of their testimony, appellant offered an instruction, in the nature of a demurrer to the evidence, which the trial court refused, and appellant thereupon introduced its evidence, and, at the close of all the evidence, again offered an instruction in the nature of a demurrer to the evidence, which was, by the trial court, refused.

The cause was submitted to the jury, which returned a verdict in favor of respondent and against appellant in the sum of $22,500 as previously stated.

That plaintiff tried three or four times to pull the pin lifter by jerking on the lift rod, and was not able to uncouple it. The evidence further shows that while the cars were so moving there was no strain on the knuckle lock at all, and that it was the easiest and best time to lift the pin lifter to make an uncoupling.

When he was unable to make the uncoupling, he went in between the ends of the ears, which cars extended about a foot and a half over each side of the rails of the track, and while between such cars attempting to lift the lock on the other coupler, which he says he was jerking on trying to raise, he stepped on some object which he later thought was a piece of pipe that one of the witnesses found just a few inches outside of the rail.

The evidence further showed that the pin lifter shown on the northeast corner of the red, or M., K. & T., car on Exhibit D, opposite page 76 of the record, was the only device that plaintiff could have used to uncouple the cars without going between the ends of same, and as heretofore stated it was inoperative and would not make the uncoupling. He went between and caught hold of the blue lock shown in the middle of the blue coupler on the exhibit, and was attempting to lift that when he fell and was run over and injured.

Defendant's witness and car inspector Lang, among other things, testified that he looked at the cars at 8 or 8:30 o'clock the next morning after the accident; said when he examined them the cars were coupled together, and that he did not inspect the couplers or test them while the cars were in motion or being pushed or pulled. He further testified that sometimes an inoperative coupler, after it had been pulled around and jostled and hit, would sometimes become operative, but says that didn't frequently occur. He further testified that...

To continue reading

Request your trial
42 cases
  • Kepner v. Railroad Co.
    • United States
    • Missouri Supreme Court
    • 27 Marzo 1929
    ...and should have been set aside on that ground. Varley v. Taxicab Co., 240 S.W. 218; Ternetz v. Lime & Cement Co., 252 S.W. 65; Foster v. Davis, 252 S.W. 433; Thompson v. Smith, 252 S.W. Abbott, Fauntleroy, Cullen & Edwards and Charles P. Noell for respondent; Glen Mohler of counsel. (1) A t......
  • Capstick v. Sayman Products Co.
    • United States
    • Missouri Supreme Court
    • 31 Diciembre 1930
    ...assumes that the stairway was not reasonably safe. (4) The damages are excessive. Fitzsimmons v. Ry. Co., 294 Mo. 551; Foster v. Davis, 252 S.W. 433; Thompson v. Smith, 253 S.W. 1023; Miller v. Schaff, 228 S.W. 488; Stahl v. Ry. Co., 287 S.W. 628; Lissenden v. Railroad, 238 Mo. 247; Yost v.......
  • Crane v. Foundry Co.
    • United States
    • Missouri Supreme Court
    • 29 Marzo 1929
    ...order and the direction of the foreman was negligent. Northern v. Fisheries Co., 320 Mo. 1011; Wright v. Iron Co., 250 S.W. 942; Foster v. Davis, 252 S.W. 433; Edmonson v. Hotel Statler Co., 267 S.W. 612; Lampe v. Express Co., 266 S.W. 1009; Wolfe v. Payne, 241 S.W. 915; Menefee v. Diggs, 1......
  • Mitchell v. Wabash Ry. Co.
    • United States
    • Missouri Supreme Court
    • 23 Febrero 1934
    ...Hurst v. C.B. & Q., 280 Mo. 572; Greenwell v. C.M. & St. P., 224 S.W. 410, 284 Mo. 418; Miller v. Schaff, 228 S.W. 488; Foster v. Davis, 252 S.W. 433; Thompson v. Smith, 253 S.W. 1023; Stahl v. Railroad, 287 S.W. Trusty & Pugh for respondents. (1) The court did not err in overruling the dem......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT