Halt v. Cleveland C., C. & St. L. Ry. Co.

• Decision Date: 25 November 1925
• Court: Missouri Supreme Court
• Parties: HALT v. CLEVELAND, C., C. & ST. L. RY. CO.

279 S.W. 148

HALT v. CLEVELAND, C., C. & ST. L. RY. CO.

Supreme Court of Missouri, in Banc.

November 25, 1925.

Motion for Rehearing Denied January 2, 1926.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

Action by Daisy Halt, administratrix of the estate of Frederick Halt, deceased, against the Cleveland, Cincinnati & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles A. Houts, of St. Louis, and Samuel W. Baxter and David E. Keefe, both of East St. Louis, Ill. (L. J. Hackney and H. N. Quigley, both of Cincinnati, Ohio, of counsel), for appellant.

Sidney Thorne Able and Charles P. Noell, both of St. Louis (Glen Mohler, of St. Louis, of counsel), for respondent.

Statement.

WOODSON, J.

The plaintiff brought this suit in the circuit court of St. Louis against the defendant to recover $65,000 damages for the alleged negligence in killing her husband. The trial was had before the court and jury, which resulted in a verdict and judgment for the plaintiff for the sum of $13,500, and, after moving unsuccessfully for a new trial, the defendant duly appealed the cause to this court.

Counsel for the respective parties have filed a statement of the case, and counsel for plaintiff has filed an additional abstract of the record, which has necessitated them making a somewhat different statement of the case from that made by counsel for the defendant. The evidence for the plaintiff tended to show these facts, and they differ but little from what the statement of facts is, as stated by counsel for defendant:

That this suit was brought by the personal representative of Frederick Halt to recover damages on account of his wrongful death against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, commonly known as the "Big Four" Railroad. There was testimony that the beneficiaries to this action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) were Mrs. Daisy Halt, widow, Freddie A. Halt, 17 years of age, and Ruel J. Halt, 18 years old. These boys were in school at Jeffersonville, Ind., the day Frederick Halt, the deceased, was killed. Halt was acting as a switchman in the switchyards of defendant, making up an interstate train. Both the deceased and defendant were, at the time deceased was killed, engaged in interstate commerce, and the federal Employers' Liability Act therefore is applicable to this case.

The evidence in this case shows: That the deceased, Halt, was standing at No. 5 crossover switch in defendant's Brooklyn yard at the time he was killed. That at that time he was a member of a yard switching crew employed at the Brooklyn switchyard. The yard or switch engine had coupled to it a cut of 12 cars, which were being pulled east out of the passing track past Halt, who was standing north, a few feet away from his moving train, in a position to pass signals originated at the rear or west end of his train, and intended ultimately for the engineer on the yard engine at the head end or east end of the train. His duties required that he stand at No. 5 cross-over switch and pass signals with his lantern, which were given him by his foreman, John Brazzele, who was at the rear end of the cut of cars. The deceased and his foreman and helper, William Felker, were all using lighted lanterns in the giving and passing of signals. The movement and the stopping of the cars being switched by the yard crew that Halt was a member of were governed by the signals given the engineer by the switchmen, including deceased, and it was the duty of Halt to stop his train by signal as soon as the last car had passed over No. 5 cross-over switch, and to throw the switch and signal the engineer to start west, and in the opposite direction the cars had been moving, and push the train down into track 2. Halt was killed while his train was pulling out of the passing track by the caboose being kicked over him, and he had not thrown the switch to permit the cars to be pushed into No. 2 track; but this would have been his next duty, if he had not been killed. It was Intended that these 12 cars were to be pushed into No. 2 track, and Halt and his crew were to go to track No. 1 and get 4 more cars, and put these 4 more cars in on track 2, coupling them up with the 12 cars on track 2, and with the 4 cars coupled onto the 12 the train Would have been completely made up and ready for Halt and his crew to couple the caboose to it, so that the road engine could take the train on its journey.

The evidence shows that the deceased was killed at 6 p. m.; that this train was scheduled to leave, with the road engine coupled thereto, at 7 p. m., and that all that remained for the yard crew to do from the time Halt was killed at 6 p. m. to 7 p. m., when the train was scheduled to leave, was to go to track 1 with the engine (which the plat indicates as being very close by) and get the 4 cars standing on track 1, and put them in on track 2 with the other 12, and, after putting the 4 cars with the 12, the next move would have been to put the caboose on the end of this train. The coupling of the caboose on the train was always the last act the yard crew performed after making up the train, and it was the custom for the switching crew Halt was a member of to put the caboose on the train after having made the train up, and after they had the cars coupled together on one track, ready to be coupled onto by the road engine with the road crew, who took the cars oil their journey to Eastern states, the road engine being the usual type of road engine, built for the purpose and used in pulling freight trains out of Brooklyn, Ill., for points east. The switch engine Halt and members of his crew were working with being specially adapted and built for switching of cars, with the usual footboards on the engine and tender for the switchmen to use in doing their work. The duty of the road crew was to pull the train from Brooklyn, Ill., to points east, and it was no part of their duty to switch or move cars in and about the Brooklyn switchyard. One switch engine and crew was all that could safely and conveniently work in this Brooklyn yard at one time. The road crew customarily brought the caboose and road engine to Brooklyn from East St. Louis, Ill., and stood with the caboose in the clear on the lead track near the water tank.

The evidence on behalf of plaintiff was that the caboose invariably and customarily stood near the water tank, where it would not interfere with the switching operations of the yard crew; that it was the custom of the yard crew of which Halt was a member to move this caboose to the end of the train of cars after the cars had been coupled together on one track, preparatory for the road engine to take the train east. Deceased was killed about 6 p. m., and it was dark at this time. At the time he was killed he was standing at No. 5 cross-over switch, passing a signal with his lantern which he had received from his foreman, which was intended for the engineer of his crew. The foreman of the switching crew was at this moment near the rear end of the 12 cars, and Halt's position was between the rear end of the cut or train of cars and the engine, and he was in a position, standing by the side of his train, to pass a signal from his foreman to the engineer on the engine. Halt was last seen standing passing this signal at NO. 5 cross-over switch, as his train of cars was moving past him. His duty was to reline this switch he was standing at, after the cars had passed over same, and it was necessary for him to stand at this switch to be ready to reline same. While he was standing in this position, watching his train and busily engaged in passing the signals aforesaid to the engineer of his crew, the caboose was kicked down from the position it had stood in near the water tank, past this No. 5 cross-over switch the deceased was standing at, killing him instantly. The caboose struck him from the rear. Halt's own train was making the usual noise as it was moving past him. No one saw the caboose as it struck him, but he was found dead by members of his crew at this cross-over switch No. 5, and his cap was afterwards found on the forward end or step of the caboose, where it had been knocked off his head.

The evidence further shows that Halt was not informed of the intended unusual movement on the part of the road crew of this caboose, and had no knowledge or warning, prior to the movement thereof, that the caboose was to be moved by the road crew while deceased was engaged in making up the freight train. There was evidence on the part of the road crew that they were ordered to kick this caboose down this track No. 2 by a man named Joseph Lowery, who was on this particular occasion acting as temporary yardmaster; that this order to kick the caboose down the track was given them inside the yard office by the yardmaster. The yardmaster, Joseph Lowery, testified that he walked out of the yard office and lined up the switches for the passage of the caboose on track 2; that at the time he was lining up the switches he knew Halt was standing at No. 5 cross-over switch, his train moving in front of him; that he did not tell Halt of the intended movement of the caboose by the road crew; that Halt was perfectly safe, standing at No. 5 crossover switch, as the caboose and engine standing on the lead blocked the entrance to the switchyard. There was evidence that Halt would not expect the caboose kicked over him from the rear.

This was all the evidence in the case. The defendant offered none whatever. At the request of the plaintiff the court gave and read to the jury the following instruction:

"The court instructs the jury that, if you find and believe from the evidence that the plaintiff is the administratrix of the estate of Frederick Halt, and that Frederick Halt died December 26, 1921, and that he left surviving him a widow, Daisy Halt, and two minor children, Ruel J....