Greenwell v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 16 July 1920
• Docket Number: No. 21396.,21396.
• Citation: 224 S.W. 404
• Court: Missouri Supreme Court
• Parties: GREENWELL v. CHICAGO, M. & ST. P. RY. CO.

224 S.W. 404

GREENWELL v. CHICAGO, M. & ST. P. RY. CO.

No. 21396.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Rehearing Denied September 15, 1920.

Appeal from Circuit Court, Grundy County; L. B. Wood, Judge.

Action by Aaron Greenwell against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition that plaintiff file a remittitur, reducing the judgment from $20,000 to $15,000.

Fred S. Hudson, of Kansas City, for appellant.

A. G. Knight, of Trenton, James W. McKnight, of King City, and Mytton & Parkinson, of St. Joseph, for respondent.

WHITE, C.

The plaintiff secured a verdict against the defendant in the circuit court of Grundy county, in the sum of $45,000, for injuries received while in the employ of the defendant as an engineer. The trial court ordered a remittitur of $25,000, and judgment was rendered in favor of the plaintiff for $20,000, from which the defendant appealed to this court.

The injury for which the plaintiff sued occurred at Ottumwa, Iowa. A plat of the yard and tracks at that point is submitted with the abstract of the record, a portion of which, necessary for our purpose, we reproduce:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plaintiff had been working for the defendant since August, 1906. On the 2d day of March, 1917, he arrived with his train at Ottumwa. It was undisputed that the train was engaged in interstate commerce. He had left his engine on the engine track in the southwest portion of the yards, shown in the plat, and started walking northward along the track called the "main lead" towards the cement walk shown at the east end of the plat. He was accompanied, at least a part of the way, by his fireman, Vance. It was the plaintiff's duty, on finishing his trip, to go to the depot and sign for bulletins which had been posted, and he was on his way there for that purpose. The depot was about 250 feet northeast of the end of the cement walk. It was necessary for him to reach the end of the cement walk and follow it northeastward to the depot, a way commonly used by employés of defendant. As the plaintiff and Vance walked northward along the main lead, a long train, No. 72, was coming in from the west on the main line, and they waited somewhere near the point marked "twin switches" for that train to pass. The train passed eastward on what is marked the "wye" track, but stopped so that one or two cars "fouled the main line"; that is, stood across the twin switches, so that an engine could not pass along the main line. The plaintiff then walked backward around the rear end of the train and proceeded northeastward between the tracks marked the "old main line", and "passing track," until he got to a point west of the end of the cement walk, when he started to cross the two tracks, the "old main line" and the "main line," when he was struck by an engine, No. 2425, which had come up the "main lead" and crossed over onto the main line to the point where he was struck. The plaintiff was almost across the main line track when struck, so that he was knocked down to the right of the engine, and a wheel passed over one of his legs, so that it had to be amputated 10 inches above the knee. After the injury he lay to the right of the track, about opposite the end of the cement walk, according to some witnesses for defendant. He testified that he was dragged a considerable distance. The employés operating the engine which struck him denied that he was dragged any distance, but admitted that he was observed, after he was struck, to be rolling over. It is undisputed that the engine which struck him rang no bell and gave no sort of signal, except a signal to train 72, which was down on the "wye," to back up. This consisted of one long, one short, and one long blast.

The witnesses who saw the plaintiff at the time he was struck were Emmett Keene, the switchman on engine 2425, Theodore Runzler, the engineer in charge of that engine, and H. C. Beeler, the conductor on train No. 72, which had just come in. Other witnesses saw something of the situation before and after the incident, but these were the only ones who saw the collision.

Plaintiff testified that, when he left his engine down on the engine track, he started up the "main lead" with his fireman, Vance, and as they approached the twin switches train No. 72, consisting of 55 cars, came in from the southwest and passed the twin switches onto the "wye," which ran eastward and to the right. Vance suggested that they hurry across in front of the train, but Greenwell said, "Safety first," and he stood and waited for it to pass by. The train stopped with the two rear cars "fouling the main line" across the twin switches, and Greenwell then walked back around the rear end of this train, and started northeastward between the "old main line" and the "passing track." When he got to a point about 30 feet southwest of the cement walk, he looked around and saw to the southwest engine No. 2425 coming up the lead, and in the meantime train No. 72 had pulled up and cleared the main line track. Just as engine No. 2425 reached the twin switches, it stopped and gave a signal for train No. 72, which was on the "wye," to pull back up the main lead into the yards. No other signal of any kind was sounded by engine No. 2425. That signal indicated to the plaintiff that engine No. 2425 would back off the switches and get out of the way, so that train No. 72 could back. He then looked to the northeast, and saw an engine on the main line, six or seven rails away, approaching. This was the same line on which engine No. 2425 should come, if it advanced instead of going back. He testified that it was customary for a locomotive bell to ring while the engine was moving along the tracks at that point. He looked both ways, seeing the situation as described, and started across the tracks. He crossed the old main line and the main line, and when his foot was on the right-hand rail of the main line he was struck. He was 46 years of age and in good health. His injury required him to be in a hospital for seven weeks, and his wound was not entirely healed at the time of the trial, and he stated that he afterwards suffered clutch paralysis. He said the engine on the main line to the northeastward was about at the pile bridge, shown on the plat, which is about half way between the end of the cement walk and the depot, and was backing down the main line towards him.

Emmett Keene, switchman on engine No. 2425, swore that the engine was making up trains, and as it came up the lead and approached the twin switches it slowed down to allow him to throw the switch. The switch had been adjusted so as to permit train No. 72 to cross onto the "wye," and had to be thrown to allow the engine coming up the lead to pass onto the main line. But he discovered the switch had already been thrown by some one else; the brakeman could not say who it was. No attempt was made by the defendant to produce the man who threw the switch. Evidently it was some one who had no business to throw it, because that was a duty devolving upon Keene. Keene said further that the engine did not stop at the twin switches, but while passing over the twin switches gave the signal, one long, one short, and one long whistle, for train No. 72 to back off the wye. No other signal of any kind was given by the engine. As the engine then approached the end of the cement walk, witness saw the plaintiff start to step across the track about 10 feet ahead of the engine. He hallooed to him twice, but Greenwell did not appear to hear, and the train struck him before he cleared the track ahead. He said the engine was moving about 6 miles an hour; that the signal to train No. 72 indicated that the train should back off the wye, but it indicated nothing as to the movement of the engine which gave the signal. On cross-examination he testified that it was his duty to look ahead and watch out for anything that might occur.

Beeler, who was running on train No. 72, testified that he got off at the twin switches and walked behind as his train went onto the wye. He then walked up behind the plaintiff, and was possibly 15 or 18 feet behind him when plaintiff started to cross the track about 10 feet beyond the engine. Witness cried out to him, but plaintiff could not hear, because the engine was making so much noise. Witness did not see the engine on the track to the north, nor recall stopping his train before clearing the twin switches.

Theodore Runzler, engineer in charge of engine No. 2425, said that as his engine came up the lead he saw Greenwell walking up between the tracks to the left, and when he got closer his view was obstructed, because plaintiff was on the other side of the engine, and got out of his view 90 feet southwest of the cement walk, as he afterwards measured the distance. He did not see the plaintiff any more until he was rolling along on the right-hand side of the track with his leg cut off. He said engine No. 2425 made no sound, except to give the signal for train No. 72 to get off the wye. He had shut off steam, and was drifting along silently at a speed of about 5 miles an hour. He could have stopped the engine in 10 feet. He gave the signal for train No. 72 to come off the "wye," as he crossed over and cleared the twin switches. Aside from that his engine made no noise whatever. He testified, as did also Keene, that it was the duty of Keene to keep a watch out in front, and if he saw danger to signal to the engineer. No signal was given. He said it would have been improper for him to cross the twin switches ahead of the backing train.

Vance, fireman on plaintiff's train, who walked up the track with plaintiff, testified that train No. 72 stopped across the twin switches, and plaintiff walked around the rear of that train, and up the track between the main line and the old main line. He heard engine No....