High v. Quincy, O. & K. C. R. Co., No. 25998.

CourtMissouri Supreme Court
Writing for the CourtGantt
Citation300 S.W. 1102
PartiesHIGH v. QUINCY, O. & K. C. R. CO.
Decision Date07 December 1927
Docket NumberNo. 25998.
300 S.W. 1102
HIGH
v.
QUINCY, O. & K. C. R. CO.
No. 25998.
Supreme Court of Missouri, Division No. 1.
December 7, 1927.
Motion for Rehearing Denied December 30, 1927.

[300 S.W. 1103]

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Suit by William High against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. G. Trimble, of St. Joseph, S. L. Sheetz, of Chillicothe, and H. J. Nelson, of St. Joseph, for appellant.

Davis & Ashby, of Chillicothe, and Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondent.

GANTT, J.


Plaintiff was the night car inspector of defendant at Milan, Mo., and this is a suit for personal injuries alleged to have been received by him while in the performance of his duty to couple an engine to a baggage car of a train due to leave Milan for Kansas City. Every morning (except Sunday) passenger trains left Milan for Kansas City and Quincy. At 3:30 a. m. on the 27th of November, 1923, engines 475 and 469 were coupled together near the roundhouse in Milan by the hostler and hostler helper. They were "steamed up," ready to pull these trains out of Milan. The hostler, acting as engineer on 475, moved the engines north on track 5 by pulling engine 469, unmanned, with the power of engine 475 to the water crane, where the hostler helper filled the tanks with water. Thereafter the engines with the power of 475 were backed on track 2 to couple engine 469 to the baggage car then standing with a passenger coach on said track. Plaintiff gave an easy back-up signal with his lantern. The hostler responded by moving the engines slowly backward until engine 469 engaged the baggage car for the purpose of coupling the engine to the car. They did not couple. Thereupon, plaintiff gave a stop signal, and the hostler responded by stopping the engines, leaving a space of about 12 inches between the drawbar of the engine and the drawbar of the car. Plaintiff went between the engine and the car to adjust the coupler of the engine. In doing so he removed the knuckle pin with his left hand; removed the knuckle, and held it against the coupler head with his right side, and with his right hand was interlocking the knuckle with the interlocking pin when either engine 469 moved backward or the car moved forward and he was caught between the drawbars and injured. While plaintiff was standing between the drawbars working with the coupler, the hostler helper, Kelsey, uncoupled the engines and gave a signal to the hostler to go ahead, which was done, leaving engine 469 with no one in control of it. It was the purpose of the hostler and hostler helper to back engine 475 onto track 1 and couple it to the passenger train bound for Quincy. Judgment was for $30,000, and defendant appealed. Other facts will be noted.

The first count of the petition is under the Federal Employers' Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665). Respondent dismissed as to this count at the close of the evidence. The case was submitted on the second count, and the negligence therein charged is as follows:

(a) That the defendant negligently furnished for the use of plaintiff engine 469, which was defective in its coupling apparatus, would not couple automatically, and could not be coupled without adjustments by an employee going between the engine and the car.

(b) That the hostler helper negligently failed to be at the rear of the rear engine at the time the coupling was to be made, but stationed himself at the head of the rear engine at said time, and the hostler in charge of the head engine, with knowledge that the hostler helper had failed to perform said duty, negligently received and acted upon signals from said hostler helper to move the head engine from the rear engine without ringing the bell and sounding the whistle of said engine, and that said hostler and hostler helper negligently uncoupled and moved the head engine without a signal from plaintiff so to do, and that the rear engine was thereby negligently left under a full head of steam on said track, unblocked, without brakes and with no one in charge of it.

(c) That the steam apparatus and machinery of the rear engine was defective, thereby permitting the escape of steam into the cylinders, which fact was known to the defendant or by the exercise of ordinary care on its part could have been known, and that an open leaky throttle valve negligently permitted steam to escape into the cylinders, which fact was known to the defendant or by the exercise of ordinary care on its part could have been known—all of said defects and acts of negligence caused the rear engine to move and thereby crush the plaintiff between the drawbars of said engine and car.

The answer was a general denial.

I. Appellant contends the court should have given its instruction in the nature of a demurrer at the close of all the evidence "because there was an entire failure of proof to support the allegations of negligence on the part of defendant."

300 S.W. 1104

It is argued respondent alleged and testified he was caught by the movement of the engine backwards; that the only allegation in the petition of a cause for the movement of the engine was by steam leaking to the cylinders, and that respondent wholly failed to make any proof of a defect in the engine that might have caused said movement, or any proof that the movement of the engine resulted from steam in the cylinders. The facts are as follows:

In the steam dome of the engine a perpendicular pipe connects with a horizontal pipe which runs toward the front of the engine, where it connects with pipes running on both sides of the engine to the cylinders. Two months before respondent was injured, the U-bolt connecting these pipes in the steam dome was loose, thereby permitting steam to leak through the pipes to the cylinders, which fact might cause the engine to move. Appellant's evidence tends to show the engine was taken out of service for a day, the steam leak repaired, and thereafter no steam leaked into the cylinders. Employees made reports in writing of work done and materials used in making repairs on the engines at Milan. Many such reports were produced at the trial showing work done and repairs made of minor importance on this engine, but no written report was produced of this important work. The machinists in the service of appellant at Milan were not finished machinists. They served...

To continue reading

Request your trial
7 practice notes
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...v. Trenton Gas & E. Co., 326 Mo. 133, l.c. 145, 31 S.W. (2d) 21, l.c. 26; High v. Quincy, O. & K.C.R.R. Co., 318 Mo. 444, l.c. 452-453, 300 S.W. 1102, l.c. 1105; Hall & Robinson v. Wabash R.R. Co., 80 Mo. App., 463, l.c. 470. (3) The trial court erred in not granting the defendant a new tri......
  • State v. Warren, No. 30203.
    • United States
    • Missouri Supreme Court
    • November 25, 1930
    ...the idea of "may," it is dubious, and probably confused the jury. If it did so. it was prejudicial. [High v. Railroad, 318 Mo. 444, 300 S.W. 1102.] Moreover, the instruction told the jury that the opinions of medical experts on questions of insanity ... are not conclusive on the jury. Defen......
  • Conduitt v. Gas & Electric Co., No. 27565.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...testimony, was erroneous and has been repeatedly so held by this court. Spencer v. Railroad Co., 297 S.W. 353; High v. Railroad Co., 300 S.W. 1102; Brees v. Ry. Co., 4 S.W. (2d) Hubbell Bros. for respondent. (1) Plaintiff's second instruction is correct. Price v. Met. Street Ry. Co., 220 Mo......
  • King v. K.C. Pub. Serv. Co., No. 18242.
    • United States
    • Court of Appeal of Missouri (US)
    • January 6, 1936
    ...Conduitt v. Trenton Gas & E. Co. (Mo.), 31 S.W. (2d) 21, l.c. 26; High v. Quincy, O. & K.C.R.R. Co., 318 Mo. 444, l.c. 452-453, 300 S.W. 1102, l.c. 1105; Hall & Robinson v. Wabash R.R. Co., 80 Mo. App. 463, l.c. 470-471; State ex rel. Mackey v. Hyde, 315 Mo. 681, l.c. 690, 286 S.W. 363, l.c......
  • Request a trial to view additional results
7 cases
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...v. Trenton Gas & E. Co., 326 Mo. 133, l.c. 145, 31 S.W. (2d) 21, l.c. 26; High v. Quincy, O. & K.C.R.R. Co., 318 Mo. 444, l.c. 452-453, 300 S.W. 1102, l.c. 1105; Hall & Robinson v. Wabash R.R. Co., 80 Mo. App., 463, l.c. 470. (3) The trial court erred in not granting the defendant a new tri......
  • State v. Warren, No. 30203.
    • United States
    • Missouri Supreme Court
    • November 25, 1930
    ...the idea of "may," it is dubious, and probably confused the jury. If it did so. it was prejudicial. [High v. Railroad, 318 Mo. 444, 300 S.W. 1102.] Moreover, the instruction told the jury that the opinions of medical experts on questions of insanity ... are not conclusive on the jury. Defen......
  • Conduitt v. Gas & Electric Co., No. 27565.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...testimony, was erroneous and has been repeatedly so held by this court. Spencer v. Railroad Co., 297 S.W. 353; High v. Railroad Co., 300 S.W. 1102; Brees v. Ry. Co., 4 S.W. (2d) Hubbell Bros. for respondent. (1) Plaintiff's second instruction is correct. Price v. Met. Street Ry. Co., 220 Mo......
  • King v. K.C. Pub. Serv. Co., No. 18242.
    • United States
    • Court of Appeal of Missouri (US)
    • January 6, 1936
    ...Conduitt v. Trenton Gas & E. Co. (Mo.), 31 S.W. (2d) 21, l.c. 26; High v. Quincy, O. & K.C.R.R. Co., 318 Mo. 444, l.c. 452-453, 300 S.W. 1102, l.c. 1105; Hall & Robinson v. Wabash R.R. Co., 80 Mo. App. 463, l.c. 470-471; State ex rel. Mackey v. Hyde, 315 Mo. 681, l.c. 690, 286 S.W. 363, l.c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT