Jetter v. St. Joseph Terminal Ry. Co.

• Decision Date: 02 April 1917
• Docket Number: No. 12157.,12157.
• Citation: 193 S.W. 956
• Parties: JETTER v. ST. JOSEPH TERMINAL RY. CO.
• Court: Missouri Court of Appeals

193 S.W. 956

JETTER v. ST. JOSEPH TERMINAL RY. CO.

No. 12157.

Kansas City Court of Appeals. Missouri.

April 2, 1917.

Appeal from Circuit Court, Buchanan County.

"Not to be officially published."

Action by John Jetter against the St. Joseph Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. A. Brown, of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondent.

BLAND, J.

As a result of an accident whereby plaintiff lots his right leg and suffered other injuries, alleged to have been caused by the negligence of the defendant, plaintiff recovered a verdict below in the sum of $5,000, and the defendant, after taking the proper steps, appealed.

Appellant urges that a demurrer to the evidence should have been sustained. As a demurrer to the evidence admits as true every fact which the testimony tends to prove and every inference that may be reasonably drawn therefrom, it is our duty to take all the evidence in its most favorable light to plaintiff. Plaintiff's case was made upon his own testimony, and appellant makes much out of some apparent inconsistencies in the evidence given by plaintiff. Plaintiff was a foreigner, German by birth, and had resided in this country for 14 years previous to the trial. The first 9 years of that time he worked as a packing house employé and for the last 5 years of it he had worked as a railroad employé, and at the time of his injury, and for a year prior thereto, he had been employed as a railroad car inspector.

By a reading of the brief filed here by plaintiff's counsel one would be led to believe that plaintiff was a very ignorant man, and that it could not be said that he was possessed of more than bare human intelligence; on the other hand, from a reading of defendant's brief, it would appear that plaintiff was possessed of a Machiavellian craftiness and cunning. However, we have carefully read the abstract of record, and we believe both counsel to be in error. It is apparent from the abstract that plaintiff is a man of at least ordinary, if not greater, intelligence, but very illiterate and not possessed of ability to clearly express himself in English. We do not have to take plaintiff's word for it, although we quote an answer given by him to a question wherein he was asked if he had not previously testified to a given state of facts:

"I may did; I don't say; I cannot explain on the answer. I ain't very well educated in this language."

We gather from plaintiff's testimony that he was injured in the following manner: That in the afternoon of April 16, 1915, he was engaged in his duties of inspecting cars in the yards of the defendant. These yards were used by several railroad companies in St. Joseph, Mo., and contained 20 tracks, 16 of which were used for switching purposes and the storage of stationary cars. The tracks were numbered from east to west, beginning with 1 and numbered consecutively up to 20; that tracks Nos. 4, 5, and 6 were filled with long strings of cars which had been inspected by plaintiff prior to the time of the accident. After plaintiff had inspected the cars on tracks 5 and 6, it became necessary for him to cross tracks numbered 3 and 2 for the purpose of inspecting a Chicago Great Western train on track No. 1, which was the track to the extreme east. About 500 or 600 feet northeast of the place where plaintiff was injured, alongside of track No. 1, was the inspector's shanty and the terminal yard office.

Plaintiff, after inspecting the cars on tracks Nos. 5 and 6, started to the inspector's shanty, intending to continue his work in connection with the said Chicago Great Western train. It became necessary for respondent to pass through a string of about 25 cars on track No. 4. When he got to the west side of the cars on track No. 4 he swung across over the coupler between the two cars and landed at the east rail of track No. 4. He then took a couple of steps which placed him at about even with the line of the outer edge of the cars on track No. 4. At this point he stopped and looked south and saw three stationary cars on track No. 3, about 6 to 10 feet south of a direct line east from where he stood. He says the cars were stationary, and that no engine was attached to them. The distance between the east rail of track No. 4 and the west rail of track No. 5 was 4 feet, 8½ inches.

Plaintiff stated that he could see a distance of about two car lengths to the south of the southermost stationary car on track 3. The evidence shows that some distance south of the three stationary cars, the exact distance not being shown, there was a lead track that connected up with all these switch tracks, and that this lead track curved toward the east. We assume from plaintiff's testimony that the reason he could not see the approach of the engine that struck the three stationary cars was on account of the curve in this lead track. After looking south at the three stationary cars and beyond them as far as he could see, and seeing no danger, he then looked north and saw on track No. 1 the Great Western engine pulling the train of cars which he was to inspect, and watching the Great Western train plaintiff started northeast toward the inspector's shanty. He took three or four steps in a northeasterly direction toward his destination, looking at the Great Western train, when defendant's switch engine coupled onto the three stationary cars without ringing any bell or giving any warning whatever to respondent, and shoved the three stationary cars north on track 3 so that the first, or northermost, car hit plaintiff on the right shoulder, knocking him down and injuring him.

The negligence charged in the petition was that defendant shoved the three stationary cars onto plaintiff without having given him any warning of any character. At the trial an ordinance of the city of St. Joseph was introduced, which provided that the bell of each locomotive engine shall be rung continuously while such an engine was being run within the city. There were a number of witnesses who testified at the trial, and from the record we conclude that the testimony was almost overwhelming that no bell or other warning was given.

One of the inconsistencies claimed by defendant to exist in plaintiff's testimony is that if plaintiff looked south, as he said he did, he would have seen the engine approaching. We have already answered this, supra. The evidence shows that this engine probably came originally from track No. 2, and if that is so, then in getting to the point where the three stationary cars were standing on track 3, it must have come up the lead track that curved toward the east, and, apparently, the fact that the engine was approaching around the curve from the east prevented plaintiff from seeing it.

Appellant also says that plaintiff should have heard the noise caused by the approach of the engine. A bell was being rung on the Great Western train, and it was moving, and evidently this caused some noise, and could have prevented plaintiff from...