Griffin v. St. Louis Transfer Ry. Co.

• Decision Date: 16 March 1917
• Docket Number: No. 17538.,17538.
• Citation: 193 S.W. 807
• Parties: GRIFFIN v. ST. LOUIS TRANSFER RY. CO.
• Court: Missouri Supreme Court

193 S.W. 807

GRIFFIN v. ST. LOUIS TRANSFER RY. CO.

No. 17538.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Morris Griffin against the St. Louis Transfer Railway Company. From a verdict and judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant. Trial was had in the circuit court of the city of St. Louis, resulting in a verdict and judgment in favor of the plaintiff in the sum of $15,000. Defendant has duly perfected an appeal. The facts disclosed by the testimony may be stated substantially as follows:

Plaintiff sustained his injuries on the 6th day of June, 1906, while in the employ of the defendant company as a fireman on one of its switch engines operating in the city of St. Louis. On that day plaintiff, as fireman, and one Hart Webb, as engineer, were in charge of one of defendant's switch engines engaged in switching operations. About 300 feet distant from the scene of the accident the switch engine had stopped. Plaintiff got off to get a drink of water and then climbed onto the engine steps leading to the gangway between the cab and the tender. He stood in this position facing Engineer Webb, who was in the engineer's seat on the opposite side of the locomotive. The engine was moved backwards, pulling three box cars and shoving the tender. It had proceeded in this manner about 300 feet and was traveling at the rate of 6 or 8 miles an hour. At this point Engineer Webb left his seat at the throttle and walked 6 or 7 feet over toward where plaintiff was standing on the steps and made a lunge at the plaintiff with a knife, coming within 6 or 7 inches of plaintiff with the knife. (The plaintiff said he was unable to account for this conduct on the part of the engineer. The engineer in his testimony explains it as having been done in a spirit of playfulness; that he did not have a knife, but simply poked his finger at the plaintiff.) Plaintiff, to avoid the lunge, swung back and away from the body of the engine, bringing his own body in contact with a telephone post standing near the track, and was immediately thereby knocked from the cab. In falling, his clothing became entangled in one of the engine wheels, and he was dragged a distance of 38 or 40 feet, when, by reason of bumping against the ends of ties, he was jerked loose from the wheel and left lying by the track. The plaintiff testified that the engineer was standing directly over him at the time he fell from the engine. Plaintiff further testified that he did not sustain any injury until he had been dragged 38 or 40 feet. Defendant introduced in evidence the former deposition of plaintiff, in which he testified that he was dragged about 20 or 25 feet, and that his back and hip were injured when he struck the telephone post. In explaining the difference in his testimony, plaintiff testified that after his deposition was taken he went to the scene of the injury and made measurements, and that he was able to locate the exact spot where he received his injury by reason of the location of a joint in the rails which he saw while he was lying by the track immediately after receiving the injury.

The evidence on the part of the plaintiff tended to show that on the day the accident occurred it was clear and the railroad track was dry, and that at the place of injury there was a curve and a slight upgrade. Plaintiff placed on the stand four witnesses, who had had prior experience in running locomotives of this kind. One of these experts testified that an engineer of ordinary prudence and skill could in an emergency bring the engine, operated under the conditions here present, to a stop in 12 or 14 feet. The second expert put the distance at 12 or 15 feet. The third expert testified that "if the engineer was right at his post" it could be stopped in 15 or 18 feet. The fourth expert testified that it could be stopped in 25 or 30 feet. No witness testified within what distance this switch engine could have been stopped, taking into consideration the fact that the engineer was 6 or 7 feet away from his throttle at the time he saw the condition of peril.

Concerning the extent of his injury the plaintiff testified that he was confined in the hospital for a period of 3 months and paid a doctor's bill of $80; that he had been unable to do any work since the injury (6 years); that at the time of the injury he was 33 years old, in good health, and earning $70 per month; and that at the time of the trial (1912) there was a lump on his back between the tenth and eleventh dorsal vertebræ, and that he suffered pain all the time, and that he was unable to lift anything. Dr. Carson, who attended plaintiff, testified that the injury caused a dislocation of the eleventh or twelfth dorsal vertebræ, and that such an injury is commonly known as a broken back; that the injury left a callous lump about 3 inches long and 2 inches wide; that the spinal cord was not much injured, but was slightly pressed upon, and that there were still some symptoms of slight pressure thereon; that the injury interferes with the motion of the back, and that plaintiff would only be able to do light work, such as folding papers and writing, and would have to avoid all heavy work, such as lifting, and would not be able to do much stooping, and would never be able to resume his work as fireman. The doctor was of the opinion that the plaintiff would never entirely recover. Dr. Todd examined plaintiff 3 years after the injury and testified that the callous condition left by the injury was permanent.

On behalf of the defendant, Engineer Webb testified, admitting that he made a dash at the plaintiff with his fingers in a playful way, but did not remember having a knife; that plaintiff swung out to avoid his attack, and was knocked off the engine by coming in contact with a telephone post; that he was 6 or 7 feet from his throttle at the time plaintiff fell, and immediately rushed back to his post and threw on the brakes to stop the engine; that there was some manure or dust and refuse on the rails, which caused the engine wheels to slip and skid; that he thereupon released the brakes and gave the engine a little steam; that he did this in order to allow the wheels to grip the rails, so that the brakes would be effective; that the wheels skidded the second time, and he repeated the performance, and finally the wheels gripped the rails, and he was able to stop the engine after it had gone a distance of about 150 feet. The engineer testified that the track was downgrade at that point.

At the close of the testimony the following colloquy took place between opposing counsel:

"Mr. Priest (counsel for defendant): I would like to have the record show that we wouldn't be liable on account of the engineer striking at plaintiff with a knife. I want the record to show that you admitted to the judge that we wouldn't be liable on account of the engineer striking at the plaintiff with a knife; that we wouldn't be liable as a matter of law for that act.

"Mr. Taylor (counsel for plaintiff): Not at all, your honor; not at all.

"(Counsel talk privately with the court.)

"The Court: That is your position; is that correct?

"Mr. Taylor: My position is that we are going to rely upon the negligence in dragging this man after he fell and his position of peril was apparent.

"The Court: And not on the act of the engineer in striking at him?

"Mr. Taylor: Not at all; not further than as explanatory of the position of the parties."

The jury first returned into court the following verdict:

"We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined, and assess his damages at the...