Hoch v. St. Louis-San Francisco Ry. Co.

• Decision Date: 15 November 1926
• Docket Number: No. 25511.,25511.
• Parties: HOCH v. ST. LOUlS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

287 S.W. 1047

HOCH v. ST. LOUlS-SAN FRANCISCO RY. CO.

No. 25511.

Supreme Court of Missouri, Division No. 1,

November 15, 1926.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Mary Hoch, administratrix of the estate of Oscar Hoch, deceased, against the St. Louis-San Francisco Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Grover, Tipton & Graves, of Kansas City, for appellant.

E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for respondent.

SEDDON, C.

Action by Mary Hoch, widow of Oscar Hoch, as administratrix of her deceased husband's estate, to recover damages for his death, which she claims to have been caused by defendant's negligence. The action is brought under the federal Employers' Liability Act of April 22, 1908 (U. S. Comp. St. §§ 8657-8665), and plaintiff seeks to recover damages in the sum of $15,624.91. The amended petition, upon which the action was tried below, alleges:

"That on or about the 6th day of March, 1922, Oscar Hoch was in the employ of defendant as air inspector; particularly inspecting and repairing federal appliances on freight cars in defendant's switch yards in Kansas City, Mo. That on said date, said deceased, while performing his duties as such employee of defendant, was inspecting cars on switch tracks in Kansas City yards in West Bottoms. That while deceased was thus engaged, attending to the discharge of his said duties on track No. 35, the defendant, its agents, servants, and employees carelessly and negligently caused a car, or cars, to be shunted against the string of cars on or among which deceased was working, thereby causing him to be crushed and injured so seriously as to cause his death on the 9th day of March, 1922. That the aforesaid injuries to deceased were caused by the negligence and carelessness of the defendant, its agents, servants, and employees, to wit:

That deceased was working on or among a string of cars on track No. 35 in said switch yards, and that the defendant, its agents, servants, and employees ran a car or cars on switch track No. 35, and against the cars that deceased was working on or among without any warning to deceased, when the defendant, its agents, servants, and employees knew, or by the exercise of ordinary care might have known, that the deceased was working on said track and in a position of peril and danger while discharging his said duties as an employee of the defendant by reason of switching and running of said car or cars on said track. That deceased was inspecting said cars on defendant's track No. 35 in said switch yards, and that he was oblivious of danger, and the defendant, its servants, agents and employees, operating said switch engine and cars saw or could have seen and observed deceased's position of peril and his obliviousness thereto in time to have exercised ordinary care by ringing the bell, sounding the whistle, or to have stopped the cars moving on said track, or to have kept said car or cars off of said track, or to have warned deceased of the movement of said car or cars on said track, and thus prevented striking and injuring plaintiff, which they failed to do, but that said defendant, its agents, servants, and employees carelessly and negligently failed to exercise ordinary care to prevent injuring deceased after such discovery, or by the exercise of ordinary care to have discovered the position of peril in which deceased was, and by reason thereof deceased"received the aforesaid injuries."

The answer is a general denial, coupled with pleas of assumed risk and contributory negligence on the part of deceased. The answer furthermore pleads that at all times mentioned in the petition there was in full force and effect in defendant's railroad yard at Kansas City, Mo., a certain rule referred to in the record as the "blue flag rule," and charges:

"That deceased had full knowledge of said rule at the time and place mentioned in plaintiff's petition; that if deceased was in a position in which he could not look out for movements of cars and trains and was in peril of being injured by movements of cars and trains upon the track mentioned in plaintiff's petition at the time and place mentioned in plaintiff's petition, it was the duty of deceased to place on the track or upon the car mentioned in plaintiff's petition a blue flag; that no blue flag was so placed by deceased at the time and place mentioned in plaintiff's petition; that if deceased was injured by reason of the movement of cars while in a position in which he could not observe the movements of cars and trains, and was in peril of being injured by movement of cars and trains upon said track, his injuries were caused solely by his failure to put out a blue flag as provided in said rule 26."

The reply is a general denial, and, by way of further reply, plaintiff

"states that if defendant had a rule known and numbered as rule 26, requiring that a blue flag should be placed on the track or at the end of a car upon which workmen were engaged, and that by the terms of said rule employees should not work at such places unless blue flags were so placed by them, then plaintiff further states that at the time and long prior to the injury to deceased mentioned in plaintiff's petition said blue flag rule was nonobserved and nonenforced by the defendant in said yards, and that the switching in said yards at the time of and long prior to deceased's injuries was carried on without the use of blue flags by deceased and other workmen, and the fact that said blue flag rule was nonobserved and nonenforced in said yards was at the time of deceased's injuries and long prior thereto known to the defendant or by the exercise of ordinary care might have been so known to defendant; and plaintiff denies that it was deceased's duty to see that said blue flag was placed at or on or in front of the cars in question before going upon said track or working in connection with said cars, as alleged in defendant's answer."

Deceased was 56 years of age at his death, and had been in defendant's employ for about 25 years. On and for several years prior to March 6, 1922, the date of his injury, deceased had been employed in defendant's Nineteenth Street, or West Bottom, railroad yard in Kansas City, Mo., as a car inspector and light repair man. His duties consisted of the inspection of the air equipment and safety appliances on freight cars in defendant's railroad yard and the making of minor, or light, repairs, such as coupling the air hoses, putting in new gaskets, tightening bolts and nuts, putting on new brake shoes, and replacing grab irons. In the performance of the aforesaid duties it was necessary for deceased to go between the cars and to work about them. The evidence of plaintiff tends to show that the accomplishment of certain of the duties aforesaid required but a brief period of time, as, for instance, the mere coupling of an air hose could ordinarily be accomplished in some four or five seconds of time.

The West Bottom yard of defendant in Kansas City, Mo., consists of some 25 or more parallel switch tracks extending north and south, with a lead track at the south end of the yard leading onto the several switch tracks. The railroad yard is approximately one-fourth mile in length, north and south, and several hundred feet in width, east and west. Deceased had been assigned a certain territory or portion of said yard in which to perform his duties, the territory assigned to deceased consisting of switch tracks numbered 25 to 41, inclusive, some 16 tracks, together with the spaces intervening between the several tracks. According to the testimony of defendant's assistant car foreman, Spangler, who testified as a witness for plaintiff, deceased "had his regular assigned territory or a portion of the yard to perform his duties in, and he did not have to report to me before he proceeded to his regular assigned duties; his duties were to take care of that operation yard, and he took care of the movements of equipment as required." Deceased apparently performed his duties without the assistance of a helper; in other words, the testimony tends to show that he worked alone. Deceased worked on an 8-hour shift from 8 o'clock in the morning until 4 o'clock in the afternoon, seven days a week.

On the morning of deceased's injury, March 6, 1922, one of defendant's switching crews was assembling cars on track numbered 35 in said yard in Kansas City, Mo., to be moved later to the freight yard or terminal of another railroad in the state of Kansas. Before the moving of the cars assembled on track 35, it was deceased's duty to couple the air hose of the several cars and to ascertain if the air equipment and safety appliances upon such cars were defective, and, if defective, to repair the same before permitting the assembled cars to leave defendant's yard. According to plaintiff's evidence, some eight or ten cars were standing upon track 35 on the morning of deceased's injury. The switching crew was engaged in assembling cars on track 35 from the lead track at the south end of the yard with the use of a switching engine. The switching engine, according to plaintiff's witness Ryan, who was one of defendant's switching crew, "picked up one car off track 29 and kicked it into track 35, went in on track 38 and got three more cars and kicked two of them to track 35, and then went over to another part of the yard." Shortly after this last switching operation, which occurred between 8:30 and 9 o'clock in the morning, deceased was found lying between tracks 35 and 36 with both legs crushed and suffering other fatal injuries. The three cars which had been last kicked or shunted onto track 35 were standing near the point or place where deceased was found, two of said ears standing north of the point where deceased was found, the deceased having been found lying near the south end of the...