Jordan v. Eat St. Louis Connecting Ry. Co.

Decision Date13 April 1925
Docket NumberNo. 24622.,24622.
Citation271 S.W. 997
PartiesJORDAN v. EAST ST. LOUIS CONNECTING RY. CO.
CourtMissouri Supreme Court

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

Action by Ernest Jordan against the East St. Louis Connecting Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Howell and R. D. Blodgett, both of St. Louis, for appellant.

Sidney Thorne Able and Charles P. Noell, both of St. Louis, for respondent.

LINDSAY, C.

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 (U. S. Comp. St. §§ 8657-8665). Beyond that, the action is grounded upon an alleged violation by defendant of the federal Safety Appliance Acts (27 Stat. L. 531, and 32 Stat. L. 943, being U. S. Comp. St. §§ 8605-8615). 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 6 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 undertook to push the drawbar back with his foot, and he was injured while so engaged.

The errors assigned here are: (1) Refusal of the court to sustain defendant's demurrer, offered at the close of plaintiff's case and at the close of the whole case; (2) the giving of instruction No. 1 for plaintiff; (3) refusal to give defendant's instruction No. 4; (4) exclusion of testimony offered by defendant regarding a rule against "kicking drawbars"; (5) excessiveness of the verdict. The first raises the question of the right of plaintiff to recover at all, under the law and the facts, and this is to be considered upon the evidence favorable to the plaintiff and all inferences to be reasonably drawn therefrom.

I. There is no testimony as to the manner of the occurrence except that of plaintiff himself. No other person was an eyewitness of what he did. There were about

30 cars on a track extending north and south, and several couplings were to be made. The engine was at the north end of the line. The plaintiff went southward on the east side of the cars, observing where a coupling was necessary, whether the knuckles of couplers were open, opening them when necessary, and giving signals to the engineer as occasion required. The twenty-seventh car in the line, as he went southward, had been coupled on. The twenty-eighth car stood a car length or more distant from the south end of the twenty-seventh car, after the latter had been coupled, and at the time plaintiff approached it. As he did so, he noticed that the knuckle of the coupler of the twenty-eighth car was closed, and that the drawbar was about six inches out of line— toward the east. He made several efforts to open the knuckle by using the lever, and, it failing to open, went in and opened the knuckle with his hands. He then undertook to push the drawbar back into line with his hands, and being unable to do so, braced himself with his hands against the car, and tried to push or kick the drawbar back with his right foot. The other car came on, and his foot was crushed. The impact did not cause a coupling. According to his testimony the track where the two cars stood was straight. The defendant's argument upon the demurrer proceeds upon the theory that the operation of opening the knuckle had been accomplished in safety; that since it was open at the time plaintiff undertook to align the drawbar, the failure of the knuckle to open by use of the lever was not the proximate cause of his injury; that the immediate, independent, and intervening cause of his injury was his act of kicking the drawbar; that the mere fact the drawbar was out of line—the cars standing as they were—constituted no violation of the Safety Appliance Act, and that there is nothing upon which to base claim of liability except the mere fact that the drawbar was out of line.

In Atlantic City Railroad Co. v. Parker, 242 U. S. loc. cit. 59, 37 S. Ct. 69, 70 (61 L. Ed. 150), it was said:

"Some lateral play must be allowed to drawheads, and further, the car was on a curve, which of course would tend to throw the coupler out of line. But the jury were warranted in finding that the curve was so slight as not to affect the case and in regarding the track as for this purpose a straight line. If couplers failed to couple automatically upon a straight track it at least may be said that a jury would be warranted in finding that a lateral play so great as to prevent coupling was not needed, and that, in the absence of any explanation believed by them, the failure indicated that the railroad had not fully complied with the law"— citing cases.

In the instant case the plaintiff, as a switchman of 14 years' experience, testified that the usual play of drawbars, to either side of the center, was about four inches. He testified that there were no sharp curves close to where these cars were. The defendant introduced a witness who testified that the amount of lateral play necessary in rounding curves depends on the length of the car; that greater lateral play was needed for a longer car; that the lateral play for a car 36 feet long was from four to six inches; that there was an additional play of two inches required for each additional five feet of length of the car. The defendant introduced evidence that a car 36 feet long was a small car, but did not show the length of the car in question. The same witness for defendant testified that it was not necessary for the drawbar in each car to be on a direct line with the other in order to couple; that if both knuckles are open there can be a variation of four to six inches on the side; that if only one knuckle is open it depends on how much the other drawbar is worn; that if a new drawbar and a new knuckle and only one knuckle open, then it would have to be in line 1 inch or 1½ inches, and if a little worn then 1½ to 3 inches. There is no testimony concerning whether these drawbars and knuckles were worn. Under the evidence it is sometimes necessary to go between the ends of cars and line up the drawbars in order to effect a coupling. Such an act is not independent of or unrelated to the act of opening the knuckle whether the opening be done with the lever or by hand. Both may be necessary to accomplish the ultimate thing to be done. Under the evidence in the record it was for the jury to find whether the lateral play of the drawbar in question was greater than was needed, and such as to prevent a coupling by impact, and required adjustment.

"The preparation of the coupler and the impact are not isolated acts, but connected and indispensable parts of the larger act, which is regulated by these statutes, and the performance of which is intended to be relieved of unnecessary risk and danger." Chicago, M. & St. P. Ry. Co. v. Voelker, 129 F. loc. cit. 527, 65 C. C. A. 231, 70 L. R. A. 264.

We have read the cases cited by defendant upon this assignment. Chief among them are C., M. & P. S. Ry. Co. v. United States, 196 F. 882, 116 C. C. A. 444; Davis, Agent, v. Hand (C. C. A.) 290 F. 73; Smith v. Public Service Corporation, 78 N. J. Law, 478, 75 A. 937, 20 Ann. Cas. 151; Pittsburgh, C. C. & St. L. R. R. Co. v. Cozatt, 39 Ind. App. 682, 79 N. E. 534; Glenn v. Met. St. Ry. Co., 167 Mo. App. 109, 150 S. W. 1092. Some of them discuss the question of what constituted...

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