Hahn v. Terminal R. Ass'n of St. Louis

• Decision Date: 12 March 1962
• Docket Number: No. 1,No. 48742,48742,1
• Citation: 355 S.W.2d 867
• Parties: Leeman C. HAHN, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 867

355 S.W.2d 867

96 A.L.R.2d 408

Leeman C. HAHN, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.

No. 48742.

Supreme Court of Missouri, Division No. 1.

March 12, 1962.

Rehearing Denied April 9, 1962.

Robert C. Ely, St. Louis, for appellant.

Chopin & Boisaubin, George D. Chopin and Alfred L. Boisaubin, St. Louis, for respondent.

COIL, Commissioner.

Plaintiff claimed $75,000 as damages for personal injuries sustained when he fell from a boxcar as a result of an inefficient hand brake thereon. A jury's verdict for $100,000 was reduced by voluntary remittitur to $75,000 and by compliance with the trial court's conditional order to $65,000. Defendant has appealed. plaintiff's action was under Section 11 of the Safety Appliance Act, 45 U.S.C.A. sections 1 to 16, which provides in pertinent part: 'It shall be unlawful for any common carrier * * * to haul, or permit to be hauled or used on its line, any car * * * not equipped with * * * efficient hand brakes; * * *.'

Defendant contends that plaintiff's verdict-directing instruction was erroneous in that it failed to submit the issue whether the boxcar in question was on defendant's 'line' at the time of plaintiff's injury. The railroad's initial position is that there was substantial evidence to support a finding either way on that issue, and that, consequently, the question was one for the jury; its alternative position is that if that question was one of law, the trial court erred in refusing to direct a defendant's verdict. The railroad contends further that the trial court erred in giving instruction 2 and that the judgment is excessive.

Just north of the mill of the Colorado Milling and Elevator Company, d/b/a St. Louis Flour Mills (hereinafter sometimes called the mill) are two of defendant's main line east-west tracks located on its right of way. Between the eastbound main line track and the mill's buildings are three tracks numbered 1, 2, and 3 from north to south and referred to as 'industry tracks.' All of track 1 is within defendant's right of way and connects with defendant's eastbound main line track at points east and west of the mill. Industry track 2 is located on the mill's property except for a few feet at both its east and west ends where it joins track 1. All of industry track 3 is on the mill's property. A written agreement in effect between the mill and defendant provided in pertinent parts: that the mill granted to railroad the exclusive right to enter on its land for the purpose of constructing and maintaining and operating over the three industry tracks to be located as heretofore noted; that the mill was to furnish and maintain a satisfactory roadbed and the railroad would construct the industry tracks and 'thereafter maintain and repair the same'; that industry would reimburse defendant for the cost of construction (except the cost of plain rails and splices which were to remain the property of the railroad) and for all costs of operation, maintenance, and alteration of tracks 2 and 3; that industry track 1 was to be constructed and maintained by and at the expense of the railroad; that the railroad had a perpetual right to use the industry tracks free of charge (provided it did not unnecessarily interfere with the mill's business) and so long as the defendant offered rates as reasonable as competing lines, the mill would consign and have consigned and its freight over such of defendant's lines as could be used in the shipment of such goods.

Track 1 was 700 feet long. At a place slightly east of midway in its length there was a shaker track or mechanism installed by the mill with the knowledge of defendant and put into operation in August 1957. The shaker track was a separated section of track. A car full of grain would be placed on such section, the car secured by clamps, tilted to the south, and then by a 'see-saw' mechanism the section of track was so rocked that within seven to ten minutes all the grain would flow from the car into the mill's storage bins.

The routine followed by the mill and defendant with respect to handling cars of grain was about as follows: The mill's elevator superintendent would direct defendant to deliver from its railroad yard certain boxcars of grain, normally about ten cars at a time. Defendant's train crew would place the ten boxcars coupled together at the west end of track 1 with their air brakes set. Mill employees would then set the hand brakes on the two westernmost cars so that if the air leaked from the air brakes, the hand brakes so set would tend to hold the string of coupled cars. The mill owned and operated a trackmobile which ran both on tracks and, by lowering rubber tires, on roads or on the ground. The trackmobile operator would uncouple the easternmost car from the others and pull it eastwardly onto the shaker track. The trackmobile would then uncouple and go from the east to the west end of the car. After the car had been emptied the trackmobile would push it eastwardly to give it a start, then disengage itself and permit the boxcar to travel on eastwardly downgrade. Stationed on a platform at the brake end of each of such emptied boxcars would be the elevator dumper operator's helper, who would control the speed of the car by operating the hand brake and thus cause the car to couple properly with any car which was standing on the east portion of track 1.

Plaintiff was the helper at the time in question and about 5:50 p. m. took his place on the platform provided below the brake on the end of a boxcar which had just been emptied at the shaker track. The car was shoved eastwardly by the trackmobile. Plaintiff immediately, as was routine, turned the hand-brake wheel five or six turns to remove the slack. When the car had traveled some distance and had reached its usual speed of four to six miles per hour, plaintiff began to turn the wheel to tighten the brake so that a proper coupling could be made with a car standing near the east end of track 1. He wound the brake 18 to 25 times but it had no effect. The boxcar did not slow but increased in speed and as a result of the force of its collision with the standing boxcar plaintiff was thrown to the ground and received injuries which will be hereinafter described.

The mill maintained no track crew. When it wished track repairs made, it hired an independent company. The mill's employees were not qualified to inspect railroad equipment brakes. The moving of railroad cars within the mill area was done by a mill company employee and its employees operated the trackmobile and the shaker.

There was testimony that it was possible, though not probable, that if a boxcar's hand brake was on at the time the 'see-saw' action was applied to empty a car, brake parts could fail as a result of that action; that if the hand brake were off, such action would not create any stress on the brake and would not cause any part of the mechanism to fail.

By reason of the provisions of the Safety Appliance Act, the railroad was liable if the hand brake failed to operate efficiently while the boxcar was being hauled or used on its line, irrespective of fault. Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615. Defendant concedes that there was substantial evidence that the brake in question did not operate efficiently and that the inefficient brake was a proximate cause of plaintiff's injuries. The question is whether the boxcar was on defendant line and, if there was evidence to so show, whether the jury should have been required to so find.

It is our view, for the reasons which will appear, that, as a matter of law, the boxcar from which plaintiff fell was being used on defendant's line at the time of plaintiff's injury.

Defendant's position is that when fact situations are presented in which an industry is being served by a single railroad, the test which determines whether the track in question is part of the railroad's line is the extent of 'the control by the industry'; and that determinative matters include whether the industry maintains its own crew for inspection and repair of cars and its own motive power for moving cars on industry tracks. Defendant argues that these five things are supported by the evidence and present a disputed fact question whether track 1 was the railroad's 'line': (1) The shaker track, part of track 1, was installed and maintained by the mill, and corollary, possibly the shaking operation caused damage to the brake in question. (2) After the boxcars are placed on the west end of track 1 by defendant, they are thereafter moved by mill employees until they reach a stationary place at the east end of track 1. (3) Boxcars are delivered by defendant to the west end and removed from the east end of track 1 only upon order of the mill's elevator supervisor. (4) The mill, in practice, hires an independent company to repair the three industry tracks even though track 1 is wholly within the railroad's right of way and even though, as defendant says, it is obligated by the contract to maintain track 1. That is true by a specific provision of the contract, and it is also true that another paragraph of the contract obligates defendant to maintain all three tracks. (5) Track 1, as well as are tracks 2 and 3, is designated an industry track by the contract and all three serve the mill.

While some of the foregoing facts might, in connection with other factual circumstances, tend to indicate a degree of control by industry which, together with other facts, could be decisive of whether a certain railroad car was or was not being used on a certain railroad's 'line,' it seems to us that none of the suggested facts change the conclusion which is compelled under the undisputed facts in this case that the boxcar from which plaintiff fell was being used on defendant's 'line' at the time.

Track 1 was on defendant's right of way, defendant owned the ties and the rails, and the duty to...