Holman v. St. Louis-San Francisco Ry. Co.
| Citation | 278 S.W. 1000 |
| Decision Date | 22 December 1925 |
| Docket Number | No. 25132.,25132. |
| Parties | HOLMAN v. ST. LOUIS-SAN FRANCISCO RY. CO. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.
Action by D. E. Holman, administrator of the estate of Elmer E. Reaves, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
E. T. Miller, of St. Louis, Herman Pufahl, of Bolivar, Mann & Mann, of Springfield, and W. F. Evans, of St. Louis, for appellant.
Sizer & Gardner, of Monett, for respondent.
Statement.
This action was filed by D. E. Holman, administrator of the estate of Elmer E. Reaves, deceased, in the circuit court of Webster county, Mo., against the St. Louis-San Francisco Railway Company. By stipulation the venue was changed and the cause tried in the circuit court of Polk county, Mo.
(1) The petition alleges the appointment of plaintiff, D. E. Holman, as administrator of the estate of Elmer E. Reaves, whose death was occasioned as hereafter stated.
(2) It is alleged that on October 10, 1921, Virgil V. Reaves was the lawful wife of said mentioned and three minor children, whom he was supporting, to wit, Chester, 8 years of age, May, 4 years of age, and Jewel Ruby, less than 2 years of age.
(3) It alleges the incorporation of defendant, and charges that it was engaged in interstate commerce, etc.
(4) It is averred that on October 10, 1921, said Elmer E. Reaves was a car carpenter in the service of defendant at Springfield, Mo., and, as such, it was his duty to assist in making repairs to defective and bad order cars, set out on the rip tracks for such repairs; that defendant had provided and maintained for the purpose of stationing bad order cars a certain track, known as the new rip track, or track No. 8, in its yards at Springfield, and in the course of such work various cars were stationed, set out on said track, and tagged or labeled for repairs; that, while deceased and his coworkers were engaged in making repairs upon all such cars, it was, at the time of his death, and for a long time prior thereto had been, the practice and custom in defendant's yards at Springfield to protect said rip track by means of a certain locked switch at the end thereof, and to protect deceased and other carpenters working thereon by means of a blue flag stationed at the ends of said cars; that, by reason of such long-continued uses and practices of locking said switch and protecting said cars with a blue flag, the switching crews of defendant working in the yards were prohibited from coming in onto the said track with a switch engine or other cars, and were prohibited from molesting or disturbing such cars while the repairs thereon were being made; that it was the duty of defendant's foreman in charge of the work of repairing such cars to lock such switch and to put up the blue flag, and thereby protect deceased and others working under and about said cars; that it is the duty of said foreman to at all times keep said blue flag up and said switch locked, "and not to remove said blue flag or to unlock said switch while deceased and others were working in and around said cars, or to otherwise permit engines or cars to come in on said track, so as to shunt, bump, or otherwise move any cars upon which deceased and other employees were working without timely notice and warning to deceased of their intentions to do so; that under the practice and custom which had prevailed for so long a period prior to the deceased's death he and other carpenters had been educated and taught to, and did, rely upon such protection as afforded them by the use of the blue flag and locked switch aforesaid.
(5) It alleges that it was the duty of defendant's employees to exercise due care in the performance of the duties required of them as aforesaid, but that the employees of defendant failed and neglected their duties in such behalf, so that deceased on above date was run over and killed as hereafter set out.
(6) It is averred that on October 10, 1921, Elmer E. Reaves was engaged in repairing a certain brake hanger and other portions of a certain car upon the rip track aforesaid; that at said time a number of other cars were stationed on said track so that cars were uncoupled from each other, and stood 2 or 2½ feet apart so that workmen could pass between said cars while in the performance of their work.
(7) It alleges that, while deceased was at work in the line of his duty, without notice or warning to him, the servants of defendant unlocked the switch connecting said rip track with other tracks in said yards and removed the blue flag therefrom, knowing at the time that deceased was engaged at his work in and around the cars located on said rip track, and making repairs thereon; that shortly thereafter, while switching, defendant's employees shoved and kicked a certain string of cars onto said rip track, which collided with other cars thereon, by means of which deceased was caught between the ends of such cars, and sustained injuries thereby which resulted in his death.
(8) It is averred that defendant's servants removed said flag and did said switching without warning to deceased, when they knew, or ought to have known, that deceased was at work behind said cars, and was not aware of the approach of said switching cars.
(9) It is alleged that the car upon which deceased was making repairs at the time he was killed was loaded with merchandise then in transit, and transported by defendant from and through points beyond the state of Missouri to its destination at a point within the state of Missouri, etc., and that deceased was then engaged in interstate commerce.
(10) It is alleged that deceased, when killed, was 32 years of age, was a strong, able-bodied man, and was earning large wages; that his widow, Virgil V. Reaves, at the time of his death was 29 years of age; that her husband was her sole and only support for herself and said three minor children, etc.; that by his death they have been deprived of the monthly contributions which he set apart for the support and maintenance of said wife and children.
(11) This paragraph of the petition reads as follows:
"Plaintiff states that the injuries to and the death of the said Elmer E. Reaves, and the consequent damage to his widow and children, was directly caused and occasioned, in whole or in part, through the carelessness and negligence of the defendant, its agents, servants, and employees in unlocking said switch and removing the blue flag from said track without any warning or notice to the deceased of their intentions to do so, and in kicking and shunting certain cars in on the said track with great force and violence, without any warning to the deceased whatever, when they knew, or by the exercise of ordinary care on their part could have known, that the deceased and other workmen were engaged under and about said cars in the performance of their work in repairing same, and in permitting and allowing said cars to be kicked and shunted onto said track in violation of the rules of said company, and in violation of the long-continued practice and custom which then existed, and when they knew that the strict observance of said custom and practice with reference to the warning and notifying of the deceased of such blue flag was his only means of protection while so working on said cars."
(12) The petition concludes by alleging that plaintiff, as administrator aforesaid, is entitled to recover $50,000 as damages, etc. The amended answer contains a general denial. It further alleges that deceased was employed as a car carpenter on the defendant's repair track, and was engaged in repairing cars; that he worked between 8 o'clock in the forenoon and 12 noon, and between the hours of 1 o'clock and 5 o'clock in the afternoon, of each working day, unless otherwise directed by his foreman; that the tracks on which deceased was working when injured, known as the repair tracks, are protected, as alleged in plaintiff's petition, by a special lock for the purpose of locking the switches to said repair tracks, so that trains or engines cannot move in upon said tracks while men are at work about said cars; that said repair tracks are further protected by a blue flag stationed at or near the end of the car nearest the switch of said track, which said flag is a signal to all employees of defendant that men are working in and about the cars of said track, and that a car or cars so protected by said blue flag are not to be touched or moved by an engine or cars; that it had been the rule and custom of defendant for a long time to remove said blue flag and to unlock said switches to said repair tracks at 5 o'clock in the afternoon, the time when deceased and other car men were ordered to leave said tracks, in order that the locomotive engines of defendant might go upon said track and remove certain cars therefrom; that said rule and custom was well known to the deceased.
It is further alleged that at 5 o'clock p. m. on the 10th day of October, 1921, when deceased was killed, a steam whistle of defendant was sounded, as had been the uniform custom, which was a signal to the deceased, and other car repairers, that it was 5 o'clock, and that they should quit, and leave the work upon said track; that said whistle was a further signal and warning to the deceased that he would thereafter not have the protection of either the blue flag or the locked switch; and that engines would come upon said repair track and move the cars thereon.
It is alleged that, when said whistle blew, or soon thereafter, deceased left the place where he had been working in repairing the coupler on a certain car, and reached a place of safety outside the rails of said track, and thereafter walked on the outside of said track, and along the side of the car on which he had been working, and then walked...
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