Kamer v. M.-K.-T. Railroad Co.

• Decision Date: 18 November 1930
• Docket Number: No. 28470.,28470.
• Citation: 32 S.W.2d 1075
• Parties: JOSEPH P. KAMER v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

32 S.W.2d 1075

JOSEPH P. KAMER v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant.

No. 28470.

Supreme Court of Missouri, Division One.

November 18, 1930.^*

Appeal from Circuit Court of City of St. Louis. — Hon. A.B. Frey, Judge.

AFFIRMED.

Carl S. Hoffman and Everett Paul Griffin for appellant.

The court erred in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence. (1) Failure of respondent to put out blue lights before going in between the cars was a knowing violation by respondent of a positive rule promulgated by appellant for respondent's own safety and was the sole proximate cause of his injury. Francis v. Railroad Co., 110 Mo. 387; Yoakum v. Lusk, 223 S.W. 53; Flack v. Ry. Co., 285 Mo. 28; Great Northern Ry. Co. v. Wiles, 240 U.S. 444; Davis v. Kennedy, 266 U.S. 147; Central Ry. Co. v. Young, 200 Fed. 359; Shumaker's Adm'r v. Railroad Co., 99 S.E. 739. (2) Suit is under the Federal Employers' Liability Act, and in such an action assumption of risk is a complete defense. The danger of going between the cars under the circumstances shown by the evidence was open and obvious. Respondent knew the danger, or, in any event, the danger was so open and obvious that an ordinarily prudent person would have seen and appreciated. Accordingly, respondent assumed the risks. Hoch v. Ry. Co., 315 Mo. 1199; Quigley v. Hines, 291 Mo. 23; Flack v. Ry. Co., 285 Mo. 28; Boldt v. Railroad Co., 245 U.S. 441; Sou. Pac. v. Berkshire, 254 U.S. 415; Matthews v. Railroad, 227 Mo. 241; Lavelle's Adm'r v. Ry. Co., 108 Atl. 918; Jacobs v. Ry. Co., 241 U.S. 229; Seaboard Air Line v. Horton, 233 U.S. 492.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

The court properly overruled the defendant's demurrer to the evidence. (1) In passing upon a demurrer to the evidence, it is the duty of the court to accept as true all evidence in favor of plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no cause. Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219; Gratiot v. Railroad, 116 Mo. 466; Scherer v. Bryant, 273 Mo. 602; Steffens v. Fisher, 161 Mo. App. 393. (2) The jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case. Gould v. Railroad Co., 315 Mo. 713; Zlotnikoff v. Wells, 220 Mo. App. 869. (3) When defendant does not rest upon the demurrer offered at the close of plaintiff's case, but elects to offer evidence, the plaintiff is entitled to the most favorable view of all the evidence. Anderson v. Davis, 314 Mo. 546; Maginnis v. Railroad, 268 Mo. 667. (4) It appears not only from the plaintiff's testimony, but also from the evidence of defendant's witnesses, the foreman of the switching crew and the acting yardmaster, that it was customary, in defendant's yard, when a train was being made up, and a minor repair to a car was required, to have the car men or inspectors do the work immediately, upon the order of the switch foreman, and under such circumstances the latter would so regulate the work of his crew as to protect the man engaged in making the repair from injury by car movements. Under such circumstances, the switch foreman, was negligent in ordering his crew to kick the cut of cars against those about which plaintiff was employed, under his order and with his knowledge. Federal Employers' Liability Act, 45 U.S.C., sec. 52; Reading Co. v. Rorer, 15 Fed. (2d) 1017; Halt v. Railroad (Mo.), 279 S.W. 148; cert. den. 271 U.S. 668; De Clue v. Railroad (Mo.), 264 S.W. 992; Preston v. Railroad, 292 Mo. 442; McGovern v. Ry. Co., 235 U.S. 389, 59 L. Ed. 283; Pacheco v. Railroad Co., 15 Fed. (2d) 467. (5) In view of the testimony from both sides of the case, that minor repairs were customarily made in the yard upon order of the switch foreman, without posting blue lights, it cannot be said, as a matter of law, that in so proceeding plaintiff was guilty of negligence, or that his failure to observe the blue-flag rule was the sole proximate cause of his injury. Barry v. Railroad, 98 Mo. 69; Brady v. Railroad, 206 Mo. 531; Yost v. Railroad, 245 Mo. 245; Finnegan v. Railroad, 261 Mo. 503; Pocahontas, etc. Co. v. Johnson, 244 Fed. 373, 245 U.S. 658; Mason v. Railroad Co., 111 N.C. 482. (6) Plaintiff was not bound to anticipate that the switching crew foreman would negligently violate the accepted custom and practice of the yard. Such danger was not known to him, nor did it fall within the class of risks so obvious that he was bound to appreciate it. Chesapeake & O. Railroad Co. v. De Atley, 241 U.S. 310, 60 L. Ed. 1016; C., R.I. & P. Railroad Co. v. Ward, 252 U.S. 18, 64 L. Ed. 430; Gila Valley Railroad Co. v. Hall, 232 U.S. 94, 58 L. Ed. 521.

LINDSAY, C.

This is a suit for damages brought under the Federal Employers' Liability Act. The plaintiff was employed as an air-brake inspector in defendant's railroad yards, known as the Baden Yards, in North St. Louis. In the course of his employment and on the morning of December 25, 1925, he received an injury which necessitated the amputation of his left leg about five inches below the knee, and some other injuries. He had a verdict for $20,000, and remitted the sum of $2,000, as required by the court, preliminary to the order overruling defendant's motion for a new trial. Defendant appealed from the judgment entered in the sum of $18,000. At the time of his injury plaintiff was forty-eight years of age, and had been employed in defendant's yards for more than two years, and prior to that time had been mostly engaged in railroad employment.

The tracks of defendant's yards extend from north to south, and of these some were used for storing cars, others for the switching operations required in making up freight trains. There is a track known as a "rip track" where light repairs were made on defective cars; also, tracks upon which cars are assembled by a switching crew, consisting of an engineer, fireman, a switch foreman and two switchmen, using a switch engine. The work and practice was for the switching crew to assemble on the appropriate track, and couple together cars for the making up of a certain outgoing train. After the cars for such a train were thus assembled and coupled, they were inspected by the car men, and by the airmen or air-brake inspectors who would inspect the air-brake appliances and couple the air-hose. Applicable to the work to be done by these men and for their protection while at such work, there was a rule referred to as the "blue flag" or "blue light" rule. It was as follows:

"A blue flag by day and a blue light by night, displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it; when thus protected it must not be coupled to or moved. Each class of workmen will display the blue signals, and the same workmen are alone authorized to remove them. Other equipment must not be placed on the track so as to intercept the view of the blue signals without first notifying the workmen. When emergency repair work is to be done under or about cars in a train and a blue signal is not available, the engineman and fireman will be notified and protection must be given those engaged in making the repairs."

Plaintiff's working hours began at eleven o'clock at night, and ended at seven o'clock in the morning. On the night in question he began work at eleven o'clock. Shortly thereafter, a freight train designated as No. 93, was made up on a track known as track No. 5. Plaintiff placed blue lights at the end of train 93, and made inspection of the air appliances and coupled the air-hose on that train. This train was pulled out of the yards about 12:30. The next train to be made up, and to require attention from the plaintiff, was a train known as No. 73, and the cars making up that train were being assembled on the track designated as track No. 1. After completing his work on train No. 93, on track 5, plaintiff and some other men went to the inspectors' shanty near the north end of the yards, where some of the men were eating a lunch. Plaintiff made out his card, or report, as to train 93, and then went over to track 5, to get the yard hose, blue lights and other equipment used in the inspection of train No. 93. These lights and equipment were placed near track 1 so as to be ready for use during the inspection to be made of train No. 73, after the cars in that train should be assembled and coupled. The plaintiff testified that as he came back from track No. 5, and was near the north end of track No. 1 and near the shanty, he met Mr. Morgenthaler, who was the switch foreman, and that Morgenthaler directed him to go down to a certain car standing on track No. 1, and see to the knuckle-lock, which was not operating. Asked to state what Morgenthaler said to him, plaintiff answered: "Why, he gave the number of the car, and he said that on the south end of it the knuckle-lock was not operating, and for me to go down and see it, and I asked him whether to put the blue light out and he said, `No, that will bottle up the north end.' He said, `We have several gaps,' and he said, `I will take care of you, and I won't shove them down hard enough so as to bother you at all.'" Plaintiff in response to the instruction given by Morgenthaler went south along track 1, to see about the knuckle-lock. He passed along by twelve cars, standing together on that track. South of these twelve cars, at a distance of four or five car-lengths, were two more cars on track 1, and several car-lengths further south were a number of other cars on track 1. The...