Grange v. Chicago & E. I. Ry. Co.

• Decision Date: 14 March 1934
• Parties: Charles L. Grange v. Chicago & Eastern Illinois Railway Company, Appellant
• Court: Missouri Supreme Court

69 S.W.2d 955

334 Mo. 1040

Charles L. Grange v. Chicago & Eastern Illinois Railway Company, Appellant

Supreme Court of Missouri

March 14, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed (upon condition).

Jones Hocker, Sullivan & Gladney, William O. Reeder and Vincent L. Boisaubin for appellant.

(1) Yard employees must look out for their own safety. There is no duty upon engine crews to keep a watch for the safety of yard employees nor to warn them, unless actually seen to be in a perilous position and oblivious of their peril. Martin v. Wabash Ry. Co., 30 S.W.2d 735; Railroad Co. v. Mihas, 280 U.S. 102; Railroad v Allen, 276 U.S. 165; Railroad Co. v. Nixon, 271 U.S. 218; Southern Ry. Co. v. Verelle, 54 F.2d 1008. (2) In the absence of actual knowledge of the peril of a yard employee, there is no duty on the part of the engine crew to give a warning or signal preparatory to a train movement unless a rule or custom to do so is pleaded and proved. This is in the nature of an exception to the rule. Armstrong v. Railroad Co., 55 S.W.2d 460; Jones v. St. L. & S. F. Ry. Co., 325 Mo. 1153. (3) The Federal decisions control the rights of the parties under the Federal Employers' Liability Act. Under the Federal decisions, a sound judicial discretion should be exercised in determining the question of instructed verdicts. Thus only can a scientific certainty be given to the law in its application to the facts. Railroad v. Coogan, 271 U.S. 474; Southern Ry. Co. v. Verelle, 54 F.2d 1008; Railroad v. Chamberlain, 77 L.Ed. 503. (4) Plaintiff assumed the risk of the cars being moved suddenly at any time, and of the failure of the crew to warn him of the movement. And plaintiff assumed the risk growing out of the failure of the fireman to observe plaintiff and to notify the engineer of his danger. Biernacki v. Railroad, 45 F.2d 677; Carfelo v. Railroad, 54 F.2d 475. (5) In the absence of a custom to warn by whistle or bell before starting a train movement, the failure to whistle or ring, i.e., the failure to warn before moving the train, even if negligent, is a risk assumed by the employee. Hoch v. Railway Co., 315 Mo. 1199; Demaray v. Railroad Co., 50 S.W.2d 127. (6) Plaintiff's Instruction 1 is erroneous because: (a) It required the jury, as a prerequisite to liability, to find a fact shown by the evidence to have been impossible. (b) It is based upon a custom neither pleaded nor proved. Armstrong v. Railroad, 55 S.W.2d 460; Degonia v. Railroad Co., 224 Mo. 564. (7) Defendant's Instruction 9 presented a disputed question of fact and should have been given to the jury. Legitimate inferences quite as much as direct testimony support an instruction based thereon. Railroad v. Mertens, 78 Mo.App. 81; Stephan v. Metzgar, 95 Mo.App. 626. (8) Knowledge of plaintiff's peril is the sine qua non of defendant's liability. If the defendant's servants did not possess this knowledge, the verdict should have been for the defendant, and the defendant was entitled to its Instructions 10 and 11, Railroad Co. v. Mihas, 280 U.S. 108. (9) The verdict was excessive. Rose v. Railway Co., 315 Mo. 1181; Wolfe v. Payne, 294 Mo. 170; Leighton v. Davis, 260 S.W. 986.

Eagleton, Henwood & Waechter for respondent.

(1) There is a duty to observe and warn an employee who is ordered by the train crew to perform work upon a car which is part of a train temporarily stopped of its impending movement even though he is not actually seen to be in a perilous position, and notwithstanding that no custom to warn him is pleaded or proved. Kamer v. Railroad Co., 326 Mo. 792, 32 S.W.2d 1075, certiorari denied 282 U.S. 903; Smith v. Ry. Co., 279 Mo. 173, 213 S.W. 481, certiorari denied 251 U.S. 552; Illinois Central v. Norris, 245 F. 923; Potterfield v. Terminal, 319 Mo. 619, 5 S.W.2d 447; Case v. Ry. Co., 30 S.W.2d 1069, certiorari denied, 282 U.S. 893; Norton v. Wheelock, 23 S.W.2d 142. (2) Where respondent's testimony is positive in character, not based upon guesswork or speculation, and finds full support and is corroborated by the physical facts shown in evidence, his case cannot be said to rest upon a mere scintilla of evidence, even though controverted by one witness in the employ of appellant. Gill v. Railroad Co., 302 Mo. 317, 259 S.W. 93, certiorari denied 265 U.S. 592; Potterfield v. Terminal Railroad Assn., 319 Mo. 619, 51 S.W.2d 447, certiorari denied 278 U.S. 616; Haines v. Ry. Co., 193 Mo.App. 453, 185 S.W. 1187; Laughlin v. Mo. Pac. Railroad Co., 297 Mo. 345, 248 S.W. 949; Case v. Ry. Co., 30 S.W.2d 1069. (3) Respondent to whom a duty to observe and warn is owing does not assume risks of which he knows nothing and cannot anticipate or appreciate, and which arise out of the negligence of a fellow employee. Kamer v. Railroad Co., 326 Mo. 792, 32 S.W.2d 1075, certiorari denied 282 U.S. 903; Reed v. Director General, 258 U.S. 92; Shaw v. Railroad Co., 314 Mo. 123; C. & O. Ry. Co. v. De Atley, 241 U.S. 310; Erie Railroad Co. v. Purucker, 244 U.S. 320; C. & O. Railroad v. Proffit, 241 U.S. 462; Railroad Co. v. Ward, 252 U.S. 18. (4) Respondent's Instruction 1 was not erroneous. See authorities under Point 1. (5) Instruction 9, offered by appellant, was confusing, misleading and unsupported by the evidence. The issues which it sought to present were covered by other instructions given at the request of appellant. Foster v. Davis, 252 S.W. 433; Fowlkes v. Fleming, 17 S.W.2d 511; Doyle v. Terminal Ry. Co., 326 Mo. 425, 31 S.W.2d 1010, certiorari denied 283 U.S. 820; Brock v. Ry. Co., 305 Mo. 502, 266 S.W. 691, certiorari denied 266 U.S. 634; Clayton v. Wells, 26 S.W.2d 969; Meyer v. Railroad Co., 296 Mo. 239, 246 S.W. 257, certiorari denied 261 U.S. 624. (6) The judgment is fair and reasonable. Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Radler v. Ry. Co., 51 S.W.2d 1011; Caldwell v. Payne, 246 S.W. 312, certiorari denied 262 U.S. 743; Evans v. General Ex. Co., 239 Mo. 364, 239 S.W. 487; Vaughn v. Terminal Ry. Co., 18 S.W.2d 62.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

By this appeal the defendant challenges the correctness of a judgment against it in a personal injury action for damages, brought and tried in the Circuit Court of the City of St. Louis, under the Federal Employers' Liability Act. Plaintiff, an employee of defendant in interstate commerce, was injured at Livingston, Illinois, through which defendant was operating an interstate freight train, by having his hand crushed under the wheel of one of the freight cars. His work was that of an inspector and repairer of cars and equipment used by defendant and, on the occasion in question, while attempting in the course of his work to pass between the ends of two freight cars in a long train in going from one side of the train to the other, he fell or was thrown down with his hand on one of the rails, where it was crushed by the car wheel passing over it.

The freight train in question, a through one consisting of sixty-eight cars, was going east and some five or six miles before reaching Livingston, where it would not usually stop, it was discovered that there was a "hot box" at one of the cars and this made it necessary to stop there. There was also a water tank at Livingston and the engineer and fireman decided to take advantage of the stop to fill the tender with water while taking care of the hot box. It was part of plaintiff's duties to help take care of hot boxes and he stayed at what is called a shanty, where his tools and supplies were kept, located on the south side of the main track about thirty feet from the track and one hundred fifty feet west of the water tank. It was plaintiff's duty to be there and be ready to assist in taking care of hot boxes or any repairs needed in case the train stopped for that or any purpose. If the train stopped going east so as to take water at the tank, plaintiff's shanty would be about opposite the coupling of the third and fourth cars west of the engine. This is the place where plaintiff attempted to go through the train from the south to the north side when the train stopped on this occasion, and he received his injury by falling with his hand under the north front wheel of the fourth car.

According to plaintiff's evidence, it was early in the morning but broad daylight when this train approached Livingston, slowing down to stop at the water tank, and plaintiff says he was standing about half way between his shanty and the main track on which the train approached ready to do any needed work. As the engine of the train passed plaintiff going slow, the head brakeman standing in the cab of the engine gave him the hot box signal, which consisted of putting his hand to his nose and pointing toward the hot box -- on this occasion indicating that the hot box was on the north side of the train toward the rear or west end. Plaintiff says he understood this signal fully in that he was to help look after this hot box and so he at once went into his shanty to get some additional tools and material to use in this work and when he came out and was some ten feet from the train it had stopped and the fireman was upon the tender. Plaintiff testified that he then gave the stop signal to the engineer and fireman, which meant that the train was not to move while he went through the train to the other side. The conductor testified that when a train was stopped and a person wanted it to stand still for any reason, he would give the stop signal. The plaintiff says that the fireman answered this signal with the same signal, which meant that the train was not to move, and on this assurance he attempted to go through the train to the other side, and while he was climbing over the coupling between the third and fourth...