Green v. St. L.-S.F. Ry. Co.

• Decision Date: 29 July 1930
• Docket Number: No. 4487.,4487.
• Parties: JAMES H. GREEN, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

30 S.W.2d 784

JAMES H. GREEN, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.

No. 4487.

Springfield Court of Appeals. Missouri.

July 29, 1930.

Appeal from the Circuit Court of Dent County. — Hon. W.E. Barton, Judge.

AFFIRMED.

E.T. Miller, W.P. Elmer and Phil M. Donnelly for appellant.

(1) Plaintiff should have been required to allege in what respect said defect or inefficiency, if any, was the cause of the injuries which plaintiff alleges he sustained. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. l.c. 397; Lewis v. James McMahon & Co., 217 S.W. l.c. 783. (2) This case having been filed under the provisions of the Federal Safety Appliance Act, the plaintiff should allege wherein the brake was defective because the appliances required by the statute might be actually operative, that is, capable of being operated, but the plaintiff may have failed to efficiently operate them, in which case there would be no liability on the defendant. U.S. v. Ills. Cent. R. Co., 156 Fed. 182. Then again, the defective appliance, if it was defective, which defendant denies, must be the proximate cause of the injury. Roberts' Federal Liabilities of Carriers, sec. 794, p. 1326; Great Northern R. Co. v. Otos, 239 U.S. 349; 60 L. Ed. 322. (3) Statements by company's doctor to injured servant, under his care that he would be all right, able to work in a short time, etc. made in good faith, when servant knew his knee was still swollen, held, mere expressions of opinion, not invalidating servant's release, executed in reliance thereon. Texas Midland R.R. v. Wilson, 263 S.W. 1109.

John H. Bradley, C.O. Inman and W.H. Douglass for respondent.

(1) The common law as it is interpreted and applied by the Federal court must be applied by the State courts in actions in the State court under the Federal Employers' Liability Act. Roberts Federal Liabilities (1 Ed.), secs. 557, 986; 2 Roberts Federal Liabilities (2 Ed.), sec. 830, p. 1605, and citations; Koonse v. R.R., 18 S.W. (2d) 467, 478; Vorhees v. Railroad, 7 S.W. (2d) 740, 743; Pope v. Railroad, 254 S.W. 43. This is also true in determining whether a case should be submitted to the jury. Atlantic Ry. Co. v. Hughes, 278 U.S. 496, 498. But the law of the Federal courts as to the kind and quantum of evidence necessary to require a cause to be submitted to the jury is the same as in Missouri. Grand Trunk Ry. Co. v. Inves, 144 U.S. 408, 417; Uniform Pacific R. Co. v. Huxoll, 245 U.S. 335, 339; Atlantic Ry. Co. v. Hughes, 278 U.S. 496, 498. (2) The statute requires cars be equipped with an efficient hand brake that will hold as designed and intended, and plaintiff's evidence shows that the brake on the car plaintiff was trying to stop failed to hold, and the failure of the brake to hold was a violation of the statute and entitled plaintiff to recover. Thayer v. Railroad, 185 Pac. 542; Payne, Director General v. Conner, 274 Fed. 497, 501; Railroad v. Powell, 6 Fed. (2d) 784, 785; 2 Roberts, Federal Liabilities (2 Ed.), sec. 339, p. 1231; Payne v. Railroad, 219 Ill. App. 59; Reap v. Hines, 273 Fed. 88; Scheurer v. Rubber Co., 227 Mo. 347.

SMITH, J.

Plaintiff filed this suit for damages which he alleged he sustained on account of injuries caused by an inefficient hand brake while he was at work for defendant in interstate commerce.

The petition is rather lengthy, the principal part thereof being as follows:

"Plaintiff for his cause of action says that on or about the 30th day of April, 1926, he was employed by the defendant and engaged in switching cars in the defendant's Gratiot street yards in the city of St. Louis, Missouri, making up a train for the defendant to be hauled from the city of St. Louis, Missouri, to the city of Tulsa in the State of Oklahoma; that the train was being made up on a track in said yards by switching cars onto said track and coupling them together; that the cars being switched onto the track for the purpose of making up said train were located in or near said yards of the defendant and among other cars in said yard; that one of the cars that was to be put into said train was a car loaded with joints of pipe placed onto the car in three rows or tiers; that the custom and practice of making up trains as was being done at the time was to kick the cars that went into the train onto the track, and a switchman would then mount the car in order to control its movement with brakes when coupling it onto the cars being made up into a train; that the car of pipe aforesaid was kicked onto the track in the usual and customary manner where said train was being made up and the plaintiff, as was his duty, climbed upon said car in order to control its movement with the brake in order to prevent it from coming in contact with the other cars it was to be coupled onto with such force as to move or damage them; that plaintiff took hold of the brake wheel and attempted to set the brake by turning the wheel in the usual and customary manner to set the brake and the brake would not hold; that plaintiff could not set the brake and tighten it so that it would check the speed of the car and slow it down so as to couple onto the other cars by the usual compact in making the coupling; that on account of the inability of plaintiff to set the brake so it would control the movement of said car it came in contact with the other cars with great, unusual and violent force; that as a result of the violent force of the impact the pipe moved or shifted forward on said car and against plaintiff's leg and knee, and crushed and injured plaintiff's left leg and knee; that the injuries consist of a broken knee joint, broken bones and cartileges at and about the knee joint, bruised, strained and contused soft parts of the knee and of the leg above and below the knee; that as a result of the said injuries plaintiff's left leg and knee have become infected, the skin and the soft parts poisoned as a result of the infection; that small boils and sores have formed as a result of the infection; that where these have healed it has left scars and pigment deposits; that as a further result of said injuries plaintiff was unable to work for several weeks; that after plaintiff had been off from work for several weeks he went back to work and tried to work; that he suffered severe pains and discomfort while trying to work on account of the injuries to his leg and knee, and at intervals plaintiff was required to lay off from one to two or three days at a time on account of the injuries to his leg and knee as aforesaid; that about the 4th day of December, 1926, plaintiff had to quit work on account of the injuries which he sustained to his knee as aforesaid and has been unable to do any work since said day; that as a result of the injuries aforesaid plaintiff was confined to the hospital for several weeks; that he has undergone several operations; that he has suffered and in the future will continue to suffer severe physical and mental pain; that it will be necessary to perform other operations in order to relieve plaintiff of the pain and suffering from his said injuries; that plaintiff was unable to walk for several days and is now unable to walk except with the assistance of a cane or crutch; that his knee and leg is permanently crippled, its use and function permanently impaired, and causes plaintiff to walk with a limp; that he is unable to do any work which requires him to be on his feet on account of the injuries to his leg and knee; that plaintiff has lost his wages since said injury, and in consequence thereof, at the rate of about one hundred seventy-five dollars per month and is permanently incapacitated from following his work as a railroad switchman; that his earning capacity has been greatly and permanently impaired; that plaintiff will be put to an expense or incur an indebtedness for doctors' bills in treating and caring for his said injuries.

"Plaintiff further says that it was usual and customary in loading pipe on cars to block or tie it; that the pipe on said car was not blocked or tied down so as to prevent it from moving or shifting on said car, and that the defendant negligently failed to have the pipe blocked or tied down so that there would not be danger of it moving and shifting and injuring plaintiff or other employees whose duties required them to be on the car in order to set the brake when switching the car against other cars and that the injury to plaintiff was caused in whole or in part on account of the negligence of the defendant in failing to block or tie or caused to be blocked or tied the pipe on said car so as to prevent it from moving or shifting.

"Plaintiff further says that the defendant was hauling or using said car on its line and failed to have said car equipped with an efficient hand brake in working order as required by the Federal Safety Appliance Act so that plaintiff could control the movement of said car, and check its speed, and thereby prevent it from coming in contact with the other car or cars with such force as to cause the pipe on the car to move or be shifted against plaintiff's foot and leg and injure him as aforesaid."

The petition closed with a prayer for sixty-five thousand dollars damages.

The answer denied generally the allegations of the petition and averred that whatever injuries the plaintiff received were caused or contributed to by the carelessness and negligence of the plaintiff, in that the plaintiff placed his leg at the end and on the inside of a car loaded with iron pipes with full knowledge of the danger thereof, and knew or should have known that in moving or switching a carload of iron pipes that there is a moving or shifting of the load, and that switching the car and bumping against other cars that load would likely move or shift against the end of the car, and notwithstanding this knowledge plaintiff placed his leg on the inside of the car when the car was being moved, and that so placing his leg was...