Johnson v. Terminal R. Ass'n of St. Louis

• Decision Date: 30 July 1928
• Docket Number: 26292
• Parties: Grace C. Mitchell Johnson, Administratrix of Estate of James E. F. Nexsen, v. Terminal Railroad Association of St. Louis, Appellant
• Court: Missouri Supreme Court

8 S.W.2d 891

320 Mo. 884

Grace C. Mitchell Johnson, Administratrix of Estate of James E. F. Nexsen, v. Terminal Railroad Association of St. Louis, Appellant

No. 26292

Supreme Court of Missouri

July 30, 1928

Motion for Rehearing Denied July 30, 1928.

Appeal from Circuit Court of City of St. Louis; Hon. J. Hugo Grimm, Judge.

Reversed.

R E. Blodgett and J. L. Howell for appellant.

The court erred in refusing to give and read to the jury defendant's instruction in the nature of a demurrer to the evidence for the following reasons: (1) Because no act of causative negligence on the part of defendant was proven. State ex rel. v. Ellison, 196 S.W. 1088; American Brewing Assn. v. Talbot, 141 Mo. 674; Bacon v. Payne, 190 N.W. 716; Douglas v Terminal Co., 298 F. 202. (2) Even though it be contended that a causative act of negligence on the part of defendant was proven, still defendant's peremptory instruction should have been given because it is apparent from plaintiff's own testimony that he assumed the risks. St. Louis Ry. Co. v. Harrell, 259 S.W. 739; St Louis Ry. Co. v. Blevins, 254 S.W. 671; Hartwick v. Railway Co., 286 F. 672; Davis v. Payne, 216 P. 195; Douglas v. Terminal Co., 298 F. 202; Wintermute v. R. R. & Navigation Lines, 194 P. 420; Dibble v. N. Y., N. H. & Harr. Co., 123 A. 124; N. Y. C. & St. L. Railroad Co. v. Biermacher, 143 N.E. 570; Boldt v. Railroad Co., 245 U.S. 441; Horton v. Seaboard Air Line, 233 U.S. 492; Gaddy v. N. C. Railroad Co., 95 S.E. 925; Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U.S. 310.

Charles P. Noell for respondent; Glen Mohler of counsel.

(1) The negligence of the co-employee, Sherman, being conceded, under the rule that where the acts and events that intervene between the first cause and the injury are the natural result of such first cause and follow it in an immediate and unbroken sequence, such first cause must be held to be the proximate cause of the injury, applies here. There was no immediate intervening cause for this accident save the negligence of the co-employee in permitting the car to get loose, and plaintiff's action in the emergency thus created and his resulting injuries were directly caused by the negligence charged and proven. Pullman Car Co. v. Laack, 41 Ill.App. 34; Smith v. Spokane Falls Co., 52 Wash. 350; Harker v. Railroad Co. (Iowa), 55 P. 316; Erie Railroad Co. v. Caldwell, 264 F. 947; Dean v. Railroad, 156 Mo.App. 634; Jones v. Ry. Co., 178 Mo. 528; Kane v. N. C. Railroad Co., 128 U.S. 91; Erie Railroad Co. v. Schomer, 171 F. 798; Wellington v. Pelletier, 173 F. 908. (2) Where an employee acts in an emergency created by the negligence of the employer in the endeavor to prevent destruction to human life and property, under the circumstances in evidence in this case, and where, as in this case, plaintiff did not observe the wild car until it was close upon him and was compelled to act with unusual speed, plaintiff did not assume, as a matter of law, the risks thus created, such risks not being so glaring and obvious that a reasonably prudent person acting in an emergency, as he did, would not have acted as plaintiff did. Cases cited above; Fox v. Railroad Co. (Iowa), 53 N.W. 259; Seaboard Air Line v. Horton, 239 U.S. 595; Chesapeake & Ohio Railroad Co. v. DeAtley, 241 U.S. 310; Voorhees v. Central Railroad, 14 F.2d 899.

Blair, J. Walker, C. J., White, Ragland, Atwood, and Gantt, JJ., concur; Gentry, J., not sitting.

OPINION

BLAIR

James E. F. Nexsen instituted this action in the Circuit Court of the City of St. Louis for damages sustained by him as the result of the alleged negligence of appellant. The jury found for him and assessed his damages at the sum of $ 30,000. The trial court compelled a remittitur of $ 15,000. Judgment was then entered for plaintiff in the sum of $ 15,000, and an appeal was granted to this court.

Upon suggestion that Nexsen had died since the appeal was granted, his administratrix was permitted to enter her appearance in this court and to be substituted as party respondent. The case fell to Division Two, where an opinion was written affirming the judgment of the trial court. One of the judges of that division dissenting, the case was transferred to the Court en Banc. After argument in this court, the divisional opinion was rejected and the case was reassigned to the writer.

The action was brought under the Federal Employers' Liability Act. That appellant was engaged in interstate commerce is admitted, and that Nexsen was engaged in such commerce at the time of his injury seems to be conceded in this court. The amended petition alleged that Nexsen was injured in attempting to "chock" a moving freight car which a fellow-servant had negligently failed to "chock." The alleged negligence of such fellow-servant is the sole negligence charged against appellant in the petition. The answer contained a general denial and pleaded assumed risk upon the part of Nexsen and that whatever injuries he sustained were the result of his own negligence. The reply was a general denial of matters set up in the answer.

The facts are developed solely from the evidence offered by the plaintiff, as appellant stood on its demurrer thereto. Nexsen was a member of the switching crew which was at work in the yards of appellant near Sixteenth and Poplar streets in St. Louis. Nexsen was what was termed a "long field" man, whose duties, as described by himself, were as follows: "I was supposed to make all the couplings of cars that went up over Poplar Street, that were kicked in, see they were tied together and stop them. When they went into the switch track the foreman would give me the number on a car to go back and cut behind that car."

The "short field" man was one Sherman, whose general duties Nexsen described as follows: "He was to watch out ahead of the engine, if they went around a curve, for signals, and get down and throw the signals. And I would line up the Sixteenth Street yard from there to Thirteenth. And to look out for them."

Nexsen was a switchman and was thoroughly familiar with the Sixteenth Street yards, where the accident occurred. Poplar Street extends approximately east and west. The tracks pass around a curve south of Poplar Street and cross it and are laid almost directly north from the south side of said street. It was down grade as the tracks approached Poplar Street from the south.

At about 9:40 o'clock at night on October 10, 1922, the switching crew was at work in said yards. It was then raining and quite dark. The engine of Nexsen's crew "kicked" a freight car onto the east track in the yards. It was Sherman's duty as short field man to stop the car by chocking it. By this operation is meant the placing in front of the wheel of a car a block of wood large and heavy enough to arrest the car's movement and bring it to a stop without the use of brakes.

Nexsen could see Sherman at work about four hundred feet south at the point where the car should have been chocked. As the car which had been kicked on to the east track proceeded northward down grade toward Poplar Street, Sherman, for some unexplained reason, failed to perform his duty and put the chock under the car. Nexsen was standing at about the south line of Poplar Street and the fourth track from the east side of the yards when he discovered that Sherman had failed to stop the moving freight car and that it had passed him and was gathering speed and would certainly collide with some loaded freight cars standing north of Poplar Street unless it was stopped. The car was about four car lengths south of Poplar Street when Nexsen first discovered its approach. He picked up a chock and ran toward the car and got safely across in front of it. He then placed the chock on the east rail in front of the wheel. As he raised up the end sill of the moving car struck him on the left shoulder and knocked him down. His left leg was caught under the wheels and was mangled to such extent that amputation between the hip and knee became necessary.

The only negligence charged against appellant was the negligence of its servant Sherman in failing to chock the moving car, thereby causing Nexsen to attempt to stop it to avoid a collision between that car and the cars standing north of Poplar Street. It is obvious that Nexsen would not have been injured because of Sherman's negligence had he not undertaken to avert the consequences of such negligence by attempting to stop the car. This act of Nexsen is said by appellant to have been the proximate cause of his injury. It is contended that the negligence of Sherman was not such proximate cause. This defense is available to appellant under the general denial in its answer, because it goes to the heart of appellant's case and tends to defeat the allegation of the petition that Nexsen's injury was caused by Sherman's negligence.

We agree with appellant and think that the negligence of Sherman was not the proximate cause of Nexsen's injury. Sherman's failure to chock the moving freight car when it reached him was merely one of the conditions which brought about the situation making possible the accident and injury to Nexsen. [Illinois State Trust Co. Admr., v. Missouri Pacific Railroad Co. (Mo. Sup.), 5 S.W.2d 368.] Nexsen detailed his duties and chocking the car, under the circumstances here disclosed, was not one of them. As a witness, he volunteered the statement that "I didn't have no right to chock that car. I wasn't supposed to chock it." This statement was stricken out on motion of appellant's counsel as not responsive to any question asked the witness. However, the entire record discloses that this voluntary statement was quite correct. The only result which could reasonably have been anticipated from the negligent act of Sherman in...