Hulse v. St. Joseph Ry. Co.

• Decision Date: 05 July 1919
• Docket Number: No. 19746,19746
• Parties: HULSE v. ST. JOSEPH RY. CO.
• Court: Missouri Supreme Court

214 S.W. 150

HULSE v. ST. JOSEPH RY. CO.

No. 19746

Supreme Court of Missouri, Division No. 2.

July 5, 1919.

Remittitur Filed July 14, 1919.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

Action by William H. Hulse against the St. Joseph Railway Company, in which Elizabeth Hulse was substituted as plaintiff and respondent. From judgment for plaintiff defendant appeals. Affirmed on condition of remittitur.

Robert A. Brown, of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

WHITE, C.

William H. Hulse recovered judgment against the appellant company in the circuit court of Buchanan county, in the sum of $12,000, for personal injuries inflicted upon him while in the employment of defendant, by the alleged negligence of other employés of the defendant. The defendant company appealed to this court, and pending that appeal the death of William H. Hulse has been suggested, and his widow and administratrix, Elizabeth Hulse, has been substituted as party plaintiff and respondent.

Hulse was injured June 25, 1915, while working as a switchman. At that time the defendant owned and operated certain switch tracks adjacent to the buildings and docks in the packing plant of Swift & Co. The following plat shows the position of the several switch tracks and their relation to each other:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The space marked "dock" on the south side is a raised platform about on a level with the floors of the cars as they stood adjacent to it, with a narrow space of a few inches between the cars and platform. Short 4, or cinder track, had been cut at the mark called "coal pit" so that there was just room for a ear to stand between the pit and the junction west So that a car passing eastward from track 4 onto coal track 3 could clear it.

On the morning of the injury, the working crew at that point consisted of a foreman, Tinsley; engineer, Pickel; fireman, Lyon; Grace, switchman following the engine; and Hulse, field switchman. The engine with which this crew was operating came into the yard from the west on track 4, west of where the other tracks joined it, coupled onto a box car, pushed on east and coupled onto two other cars in front of the oil house. There were then three cars attached to the front of the engine, the engine being headed east. It was desired to attach a coal car standing on track 3 at the point "A" on the plat, but there stood on track 4 a ear loaded with sand which had to be moved before the three cars which the engine pushed could be attached to the coal car. The foreman ordered the crew to push this sand car eastward onto short 4 until it was in the clear so that cars intended for track 3 could pass it. It was pushed as far as it would go on short 4, and, as it stood, there were only about eight inches from the southwest corner of that car to the side of a car which would pass onto track 3. The west end of the coal car to which it was desired to make the coupling was about two feet east of the west end of the sand car, as they stood, the sand car on short 4 at B on the plat, and the coal car on track 3 at A. The engine then pulled the other three cars back westward past the switch at C. The east end of the east car was at this time about eight feet west of the switch. The switch was called a "ground switch" and was operated by lever and thrown backward and forward from between the rails where a man would have to stand to operate it.

The situation then was this: The engine was headed east, next attached was the box car, next a refrigerator car, and " next a coal car. The fireman was on the north side of his cab looking out of his window, and the engineer was on the south side of his cab. Grace, the switchman following the engine, stood on the top of the box car next the engine; the east end of the east car was in the neighborhood of 40 feet west of the west end of the two cars which stood side by side on tracks 3 and short 4. Hulse threw the switch and adjusted the knuckle on the east end of the east car in the train and then walked eastward toward the coal car to be attached. At this point the engineer who was on the south side of the car says that before Hulse started back eastward he stepped out on the south side of the track and gave the signal to him to advance. Whether or not this signal was given was an important question of fact. Grace standing on top of the box car says that Hulse gave the signal to advance while standing in the middle of the track after throwing the switch. Other witnesses who saw part of the succeeding incidents saw no signal given by Hulse. Hulse himself testified that he gave no signal to move the car eastward; in fact, gave no signal after the stop just west of the switch. His evidence tends to show that he was not out on the south side of the track so as to give a signal from that point because there was not sufficient room on that side to stand between the track and the dock. He walked eastward towards where the ends of the sand car and the coal car stood, with the intention, he says, of climbing upon the sand car so he could there transmit signals. As he approached those cars he saw that the knuckle on the west end of the coal car, to which he sought to couple, needed adjustment, and he walked over to it and adjusted it, to use his language, "lined the knuckle up, shoved the drawbar south." At that time he says he had given no signal for the engine to move, but the engine had pushed up the three cars by that time and he was caught between what is termed the "grabirons" on the side of the sand car on short 4 and the corner of the front moving car on track 3, and received the injuries for which he sued.

It is contended by the appellant that as he walked eastward from the switch the moving car was almost at his side so that he either saw it or could have seen it by simply using his eyes, therefore is presumed to have seen it and was guilty of contributory negligence in stepping in front of it for the purpose of adjusting the knuckle. It is further contended by the appellant and shown by the evidence that the bell of the engine was ringing all the time so as to indicate the engine was moving; that by the ordinary use of his eyes and ears he could have known that the car which caught him was moving and was likely to do so, but recklessly and carelessly stepped in front of it for the purpose of adjusting the knuckle.

On the other hand, Hulse testified that he did not know the cars were being shoved eastward; that he gave no signal for them to advance; that no one had any right to give such signal except himself, and it was contrary to the rule and practice of the yards to move a car in the manner in which that was moved without a signal from a switchman placed as he was. He says further that he did not see the cars moving, and he is corroborated by other witnesses to the effect that he went considerably in advance of the car so that he could not have seen It without looking back. It is further shown by the evidence that there was so much noise and uproar caused by the machinery in the adjacent shops that it was impossible to hear the cars moving on the tracks or hear the bell at the distance it was, three car lengths, from the switchman. In fact, the noise was such that the fireman could not understand what was said to him by Grace on top of the box car when he shouted down to him that somebody got hurt. Two witnesses for the defendant, the engineer and Grace, testified, as above mentioned, that he gave the signal to advance. The fireman, on the north side of the cab in position to see down the track toward the sand car on the north side, saw no signal given except the signal by Grace on top of the box car. There was no dispute but that Grace gave that signal to advance the cars. He claimed that he was simply repeating the signal given to him by Hulse. Tinsley, the foreman, and three other witnesses who saw the incident in part, testified they saw no signal given by Hulse.

Thomas Melvin, track foreman, was standing on a car on track 5 and saw the incident. He swore that Hulse walked eastward alongside the moving car as it was pushed back, and as it came down he threw out his foot to kick over the knuckle on the moving car.

Thomas Tucker, a negro teamster employed by Swift & Co., who was standing near the sand car, testified that Hulse kicked over the knuckle on one of the cars; he did not know which. He said that as Hulse walked back he walked ahead of the moving car.

Yantes Williams, another negro employed by Swift & Co., hauling cinders and unloading coal, saw Hulse caught between the cars and injured. He did not see Hulse throw the switch, but saw him walking back toward the coal car which was to be coupled on. When asked how far behind Hulse was from the moving car, he said he did not pay close attention and it might have been a foot or two. Neither of these three of defendant's witnesses saw any signal given by Hulse for the cars to come on.

I. The question whether the defendant was negligent so as to authorize recovery is presented by the defendant's demurrer to the evidence. It was customary, and one of the rules of conduct in the matter of switching trains, as the jury found, that a train situated like this should not be moved except upon the signal of the switchman, and if it was moved in this case without such signal, and Hulse crushed by such motion, then the defendant was negligent. It is true the engineer testified that he saw Hulse step out on the south side of the track and give the signal to move, but this evidence is somewhat discounted by the fact that there was scarcely enough room for him to stand on that south side because of the dock, and the improbability of Hulse stepping out in that direction when his natural course was to step out on the other side for the purpose of walking down the track.

Grace said he saw Hulse give the signal from...