Hood v. Baltimore & O. Ry. Co.

• Citation: 302 Mo. 609,259 S.W. 471
• Decision Date: 04 March 1924
• Docket Number: No. 23914.,23914.
• Parties: HOOD v. BALTIMORE O. RY. CO.
• Court: United States State Supreme Court of Missouri

259 S.W. 471

302 Mo. 609

HOOD v. BALTIMORE O. RY. CO.

No. 23914.

Supreme Court of Missouri, Division No. 2.

March 4, 1924.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Action by Charles J. Hood against the Baltimore & Ohio Railroad Company and another. From a judgment for the named defendant, plaintiff appeals. Reversed and remanded.

Abbott, Fauntleroy, Cullen & Edwards and Brill & Weismantel, all of St. Louis, for appellant.

Fordyce, Holliday & White, of St. Louis, and Kramer, Kramer & Campbell, of East St. Louis, Ill. (Morison R. Waite and William A. Eggers, both of Cincinnati, Ohio, of counsel), for respondent.

Statement.

RAILEY, C.

On November 19, 1921, plaintiff sued the Chicago & Alton, and the Baltimore & Ohio Railroad Companies, in the St. Louis circuit court for damages claimed to have been sustained by him as an employee of said defendants, on account of their alleged negligence. On April 1, 1922, plaintiff amended his petition by interlineation, and alleged therein that on February 24, 1921, he was in the employ of said defendants as a car inspector, and that on said date, while he and the defendants were engaged in interstate commerce, he was injured as hereafter stated, and that said injuries resulted in whole and in part from the negligence of said defendants and their servants, and from defects and insufficiencies due to the negligence of defendants in respect to their cars, engines, and appliances. He alleges that, on the date aforesaid, he was engaged in connection with the movement and handling of cars, passengers, goods, wares, and merchandise, which were en route to, and from, various states of the Union; that plaintiff and defendants, at the time of his injury, were engaged in interstate commerce; that the cars, between which plaintiff was working when injured, were not equipped with couplers coupling automatically by impact, and which could be coupled without the necessity of men going between the ends of the cars, in violation of the laws of the United States, and of the Safety Appliance Act of March 2, 1893, chapter 196, 27 Statutes at Large 531, as amended by Act of March 2, 1903, chapter 976, 32 Statutes at Large, 943 (U. S. Comp. St. § 8605 et seq.). He alleges that while attempting to couple the cars above mentioned, by reason of the failure of defendants to have said cars equipped with proper couplers aforesaid, it was necessary for plaintiff, in order to effect the coupling between said cars, to go between the ends of same; that plaintiff did go between the ends of said cars, and attempted to adjust said coupler, while between the ends of said cars, so that they would couple; that while he was between said cars for the purpose aforesaid, by reason of defendants' failure to comply with the federal Safety Appliance Act, in the particulars aforesaid, his left hand was caught, crushed, and mangled in such manner as to necessitate the amputation of the thumb through the middle of the hand, including the first, second, third fingers, and first joint of the fourth finger leaving, a scar on said hand which is tender and causes shooting pains. The remainder of the petition relates to plaintiff's injuries, and the damages which he claims to have sustained, which are placed at the sum of $25,000.

The second amended answer of the Baltimore & Ohio Railroad Company denied each and every allegation of the petition, except the averment that it is a corporation. It also pleaded that plaintiff assumed the risk of his injury, and further pleaded that appellant's injury was due to his own acts of negligence.

The evidence on the part of plaintiff tended to show that at the time of his injury a diner, two sleepers, a coach, a smoker, an express car, and a mail car were standing on track 28 in the Union Station at St. Louis, Mo.; that all of the above were Baltimore & Ohio Railroad Company cars; that the mail car was at the south end of said train, which was known as the Baltimore & Ohio train No. 2; that it was an interstate commerce train, carrying passengers to Cincinnati, Ohio, Baltimore, Md., Washington, D. 0., and New York; that tickets were sold by the Baltimore & Ohio agents in St. Louis to all these points; that the above train was scheduled to leave St. Louis at 10 a. m., and the accident in question happened at 9:47 a. m. on February 24, 1921; that at the time of the accident passengers were boarding the cars under the supervision of a Baltimore & Ohio conductor, Baltimore & Ohio brakeman and porters.

The plaintiff offered in evidence an agreement between the Ohio & Mississippi Railway Company and the Terminal Company, and an agreement between the Baltimore & Ohio Southwestern Railway Company, as successor of the Ohio & Mississippi Railway Company and the Terminal Company, but we are not referred to any testimony connecting respondent with said agreements or either of them. The above agreements relate to the rights of certain railroads, named, to participate in the use of the Terminal Railroad Companies' terminal facilities, etc. Mr. James Henry Stoddard, foreman of the Terminal switching crew testified, that the Baltimore & Ohio train is pulled out by a Terminal engine, with a Terminal engineer and fireman in charge, and that the Terminal engine and crew take said train to East St. Louis; that the Baltimore & Ohio tracks do not run into the Union Station; and that the terminus of the Baltimore & Ohio is at East St. Louis.

Plaintiff's evidence also tends to show that he was employed by the defendant Baltimore & Ohio Railroad Company as a car inspector, and that it was a part of his duty, as such, to see that couplings were made so that trains could depart on time; that on the day of the accident, three refrigerator express company cars of the A. R. Express Company were brought by a terminal switch engine from track 24 to track 28 to be coupled to the Baltimore & Ohio cars on track 28; that several attempts were made to couple the refrigerator cars to the Baltimore & Ohio train; that the lock on the coupler of the Baltimore & Ohio mail car, at the end of said train, failed to work; . that plaintiff stepped between the mail car and the refrigerator car to examine the coupler of said mail car; and that, while he was between said cars, the refrigerator car was backed against him, and inflicted the injuries complained of in petition.

Plaintiff's evidence tends to show that the Terminal engine attached to the refrigerator cars was not the engine which hauled the Baltimore & Ohio train No. 2. to East St. Louis, but was detached after the refrigerator cars were coupled to the Baltimore & Ohio cars, and that another Terminal engine and crew hauled the Baltimore & Ohio cars to East St. Louis; that the Baltimore & Ohio conductor was in charge of the operation of the train, consisting of said Baltimore & Ohio cars and a Terminal switch engine; that said conductor gave the signal to move said train without consulting the engineer of the Terminal engine; that aside from the foregoing, the Terminal had nothing to do with the operation of said train; that the Baltimore & Ohio conductor and brakeman performed their regular duties while the train was en route from St. Louis to East St. Louis; that the Terminal Railroad Association never collected any fares, or looked after passengers, except on their own work trains.

Respondent, on cross-examination of plaintiff and his witnesses, elicited testimony tending to show that track No. 28 belonged to the Terminal Association of St. Louis; that respondent did not handle the cars on that track, or any of the cars at Union Station; that its lines ended at East St. Louis, and its trains were handled from East St. Louis to St. Louis over the Terminal Railroad Association's tracks by a Terminal Railroad Association engine and engine crew. This crew made several attempts to couple these cars to the mail car without success.

It appears that there was no difficulty in making the coupling, but when the engine moved forward, the knuckle on the mail car would open instead of remaining closed; that Stoddard, the foreman, told appellant to keep out from between the cars and, without knowing that he was there, signaled the engineer to back the cars and attempt to make the coupling; that when the cars came together, appellant was between them and received the injuries complained of in petition.

Appellant stated at the trial that he was his own boss, and working under the direction of no one; that he had looked after the air and steam on the train and had seen these unsuccessful attempts to make the coupling; that he saw Stoddard, the foreman of the switching crew; that Stoddard did not tell him to go between the cars, but he went, because it was his duty to see that those things worked; that he would have gone in without Stoddard telling him to do so; that without saying anything to Stoddard, he went in to see if there was anything wrong with the coupler and, while between the cars, was injured.

It appears that appellant was on the west side of the cars and Stoddard was on the east side of same; that the cars in question were being handled, as above, by an engine and crew of the Terminal Railroad Association; that the attempts to couple the cars were made by this crew, and all the signals to move the engine in the attempts to make the coupling were given by Stoddard, the foreman of the Terminal Railroad Association's switching crew; that none of respondent's employees saw appellant at the time in question, nor did any of them give appellant any orders with reference to the work in question.

The suit was dismissed as to the Chicago & Alton Railroad Company, and, at the close of plaintiff's evidence, the court gave to the jury an instruction in the nature of a demurrer to the evidence. Plaintiff took an involuntary nonsuit with leave to move the court to set the same aside, and judgment was afterwards entered for respondent. Plaintiff, in due...