Jordan v. East St. Louis Connecting Railway Company

• Decision Date: 13 April 1925
• Docket Number: 24622
• Citation: 271 S.W. 997,308 Mo. 31
• Parties: ERNEST JORDAN v. EAST ST. LOUIS CONNECTING RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

271 S.W. 997

308 Mo. 31

ERNEST JORDAN v. EAST ST. LOUIS CONNECTING RAILWAY COMPANY, Appellant

No. 24622

Supreme Court of Missouri

April 13, 1925

Appeal from St. Louis City Circuit Court; Hon. Charles W Rutledge, Judge.

Affirmed.

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

(1) The demurrer to the evidence should have been sustained. C M. & St. P. Railroad v. United States, 196 F. 882; C. M. & St. P. Railroad v. Voelker, 129 F. 526; Davis v. Hand, 290 F. 73; Smith v. Public Service Corporation of New Jersey, 75 A. 937; Pittsburgh, C. C. & St. L. Railroad v. Cozatt, 79 N.E. 534; Lindvall v. Woods, 44 F. 857; Cooley on Torts (2 Ed.) p. 73; Glenn v. Metropolitan Street Ry Co., 167 Mo.App. 109. (2) The court erred in giving and reading to the jury Instruction 1 requested by the plaintiff. Atlantic City Railroad Co. v. Parker, 242 U.S. 59; Chesapeake & O. Railroad Co. v. Arrington, 101 S.E. 415. (3) The court erred in refusing to give and read to the jury defendant's instruction numbered 4. Atlantic City Railroad Co. v. Parker, 242 U.S. 59; San Antonio & A. P. Railroad Co. v. Wagner, 241 U.S. 476, 60 L.Ed. 1110; Crowe v. B. & M. Railroad Co., 136 N.E. 189. (4) The court erred in refusing to permit defendant to show that a rule had been promulgated forbidding employees to kick drawbars and to show that the plaintiff had knowledge of the existence of this rule. Schendel v. C. M. & St. P. Railroad, 197 N.W. 744; Kern v. Payne, 211 P. 767.

Sidney Thorne Able and Charles P. Noell for respondent.

(1) Proof that a switchman of several years' experience while attempting to couple two cars together found that, by using the lever or pin lifter on the outside of the car, he could not throw the knuckle of the drawbar open preliminary to coupling the car to the car opposite it, and proof that the two cars undertaken to be coupled were standing on a straight track and that the drawbar on one of the cars by reason of lateral play was out of line so that it would not couple automatically by impact without the necessity of the plaintiff going between the cars, opening the knuckle with his hands and pushing or kicking the drawbar into alignment, and proof that plaintiff was injured while adjusting the coupler in between the cars, is sufficient proof to entitle the jury to find that the couplers were not in the condition required by the Safety Appliance Act. Grand Trunk W. Railroad Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 842; San Antonio & A. P. Ry. Co. v. Wagner, 241 U.S. 476; Hogenleitner v. Southern Pac. Co., 177 F. 796; Chicago, Rock Island & Pac. Railroad Co. v. Ray, 168 P. 999; Noell v. Quincy O. & K. C. Railroad Co., 182 S.W. 787; Atlantic City Railroad Co. v. Parker, 242 U.S. 56, affirming 87 N. J. L. 148; Payne v. Colvin, 276 F. 15; Philadelphia & R. Ry. v. Eisenhart, 280 F. 271; Chicago, Rock Island & Pacific Ry. Co. v. Brown, 57 L.Ed. 1204; Smith v. Atlantic Coast Line, 210 F. 761; Texas & N. O. Ry. Co. v. Conway, 98 S.W. 1070; Daly v. Ill. Cent. Ry. Co., 170 Ill.App. 185; Johnson v. Southern Pac. Co., 196 U.S. 1, 49 L.Ed. 363; Chicago M. & St. P. Railroad Co. v. Voelker, 129 F. 522; Johnson v. Great Northern, 178 F. 643; Philadelphia & R. Railroad Co. v. McKibbin, 259 F. 476; Nashville C. & St. L. Ry. Co. v. Henry, 164 S.W. 312, 158 Ky. 88; Donagan v. B. & N. Y. Railway Co., 165 F. 869; Erie Railroad Co. v. Russel, 183 F. 722; Tennessee & G. R. Railroad Co. v. Drake, 276 F. 394; Willet v. Illinois Central Railroad Co., 142 N.W. 828, 122 Minn. 513. (2) The preparation of the coupler and the impact itself, it has been held, are not isolated acts but are connected and indivisible parts of the coupling operation within the purview of the Safety Appliance Act. Chicago M. & St. P. Railroad Co. v. Voelker, 129 F. 522; Johnson v. Southern Pac. Co., 196 U.S. 1, 49 L.Ed. 363; Grand Trunk Western Railroad Co. v. Poole, 175 Ind. 567; Burho v. Minneapolis & St. L. Ry. Co., 121 Minn. 326; San Antonio & A. P. Ry Co. v. Wagner, 166 S.W. 24, 241 U.S. 476; Southern Railroad Co. v. Simmons, 105 Va. 651, 55 S.E. 459. (3) The court did not err in giving and reading to the jury plaintiff's Instruction 1, as it was based upon and followed the law. San Antonio & A. P. Ry. Co. v. Wagner, 241 U.S. 476; Grand Trunk W. R. Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 842; Authorities cited in preceding paragraphs. (4) The court did not err in refusing to give and read to the jury defendant's Instruction 4, for the following reasons: (a) Because the instruction was in conflict with plaintiff's Instruction 1. (b) Because defendant's offered instruction permitted the jury to find for defendant, even though the couplers would not couple automatically by impact without the necessity of plaintiff going between the cars. This offered instruction should have submitted to the jury the question of whether or not the defendant's cars would couple automatically by impact without the necessity of plaintiff going between the ends of the cars. (c) Because the evidence shows that the plaintiff tried to open the knuckle of the coupler by means of the lever or pin lifter from the outside of the car, and after several attempts finally had to go between the cars to open the knuckle of the coupler with his hands, and while he was between the cars adjusting the coupler he noticed that the drawbar was also out of line and would not couple automatically by impact, and with this evidence defendant's instruction should have permitted the jury to find for plaintiff, if they found that the plaintiff went between the ends of the cars to open the knuckle with his hands after having failed to open same by the pin lifter on the outside, and it should have authorized the jury to find for plaintiff if the coupler was also out of line, necessitating plaintiff going between the cars to adjust it. (d) Because all the evidence in this case shows that the track was straight at the place where the coupling was to be made by the plaintiff, and defendant is required under the Safety Appliance Act and the decisions thereon to keep its cars equipped with couplers which will couple and uncouple automatically even on curves. San Antonio & A. P. Ry. Co. v. Wagner, 241 U.S. 476; Chicago, Rock Island & Pac. Railroad Co. v. Rav. 168 P. 999; Hogenleitner v. Southern Pac. Co. 177 F. 796; Philadelphia & R. Railroad Co. v. McKibbin, 259 F. 476; Nashville C. & St. L. Ry. Co. v. Henry, 164 S.W. 312, 158 Ky. 88; Donagan v. B. & N. Y. Railway Co., 165 F. 869; Erie Railroad Co. v. Russel, 183 F. 722; Tennessee & G. R. Railroad Co. v. Drake, 276 F. 394; Willet v. Illinois Central Railroad Co., 142 N.W. 828, 122 Minn. 513.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

This is a suit for damages for personal injuries wherein the plaintiff had a verdict and judgment in his favor. He was employed as a switchman by the defendant, and as such was engaged in the attempt to make a coupling of certain freight cars in defendant's yards. It was conceded that plaintiff and defendant were at the time engaged in interstate commerce, and the case is one falling within the Federal Employers' Liability Act. Beyond that, the action is grounded upon an alleged violation by defendant of the Federal Safety Appliance Act (27 Stat. L. 531; 32 Stat. L. 943).

The petition charged "that by reason of the failure of the defendant to have said cars equipped with couplers coupling automatically by impact without the necessity of men going between the ends of the cars, it was necessary for the plaintiff in order to effect a coupling between the said cars to go between the ends of such cars, and plaintiff did go between the ends of said cars and did attempt to adjust the said couplers and drawbars while between the ends of such cars so that they would couple, and that while he was between the ends of the said cars about such work, by reason of the failure of the defendant to comply with the Federal Safety Appliance Act in the particulars mentioned his right foot was caught and crushed." The petition did not charge negligence in the time or manner of movement of the car.

The answer was a general denial, a plea of assumption of risk, and a plea "that whatever injuries the plaintiff may have sustained if any, were the result of his own carelessness and negligence in this, that he used his foot in attempting to line a drawbar of a car while another was in motion toward said car for the purpose of being coupled thereto."

The reply was a general denial.

The plaintiff's statement was that he found the coupler of a car which was to be coupled to the next in the line of cars being backed toward it, was not open, and it did not open when he undertook to open it by operating the lever on the outside of the car. On that account, he found it necessary to open the knuckle with his hand, and did so. At the same time, he had noticed that the drawbar was out of line to such an extent that the coupling apparatus at its outer end would not make proper contact with the coupler of the other car, when they came together, so as to make the coupling automatically. It is manifest, and it was conceded that the drawbar, in its manner of attachment to the car, must have a certain liberty of lateral motion, so that it may accommodate itself to curves in the track. The plaintiff said that the drawbar was about six inches out of line. It was admitted that there was no device by which, from the outside of the car, the drawbar could be moved into alignment and that if the drawbar was out of line and required adjustment, a man would have to go between the cars to line it up. It appears that plaintiff first tried to shove the drawbar into line with his hand. Failing in that, he placed his hands, one against the corner, the other against the end of the car, to brace himself, and...