Karagas v. Union Pac. R. Co.

• Decision Date: 27 June 1921
• Docket Number: No. 14081.,14081.
• Citation: 232 S.W. 1100
• Parties: KARAGAS v. UNION PAC. R. CO.
• Court: Missouri Court of Appeals

232 S.W. 1100

KARAGAS v. UNION PAC. R. CO.

No. 14081.

Kansas City Court of Appeals. Missouri.

June 27, 1921.

Rehearing Denied July 7, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Nick Karagas against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. W. Blair, of Topeka, Kan., and Watson, Gage & Ess, of Kansas City, for appellant. C. W. Prince, E. C. Hamilton, E. A. Harris, and Jas. N. Beery, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff's action is for damages on account of personal injuries alleged to have been sustained as the result of defendant's negligence. There was a verdict and judgment in plaintiff's favor for $1,800, and defendant appealed. It is conceded that the case comes under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), since at the time of the injury plaintiff was at work in repairing and maintaining the roadbed and track of the defendant, an interstate railroad.

Plaintiff was an experienced trackman, having worked at such labor for some six or eight years. On the morning of September 2, 1916, plaintiff with three other employees under a foreman went out on a hand car to a point on defendant's main line where they were to do some repair work. The point being reached, the hand car was stopped, the tools were unloaded, and then the four men, assisted by the foreman, lifted the hand car off the track and carried it out to one side some few feet, and set it down where it would be out of the way of passing trains. In doing this, one man took hold of each corner of the hand car, and the foreman assisted in the center on the same side the plaintiff was on. Plaintiff claims that while doing this one of the men, who was at the corner opposite him, released his hold on the car, thereby causing an additional and unexpected weight to suddenly and with a jerk come upon and be supported by plaintiff, whereby he suffered a hernia, or rupture.

The petition charged that while plaintiff and his coworkers were so engaged in lifting and removing said hand car as aforesaid "one of said servants and coworkers aforesaid carelessly and negligently let go of said hand car and ceased to participate in lifting and removing said hand car, and thereby caused a greater weight to be thrown upon plaintiff than he anticipated, and did then and there and thereby cause plaintiff to be seriously and permanently injured and crippled and ruptured."

The negligence submitted in plaintiff's instruction, covering the case and directing a verdict, was that one of said colaborers "negligently released his hold on said hand car while the same was being moved, and that said above-named colaborer negligently ceased to participate in the operation of lifting and removing said hand car," etc.

Defendant urges that its demurrer to the evidence should have been sustained, for the reason that there is no evidence showing any negligence on the part of the employee who, it is claimed, let loose of his corner of the car.

Plaintiff testified that only one man let loose or released his hold on the car; that the car did not fall to the ground; that when this man released his hold plaintiff continued to carry his corner along with the others until they reached the place the car was desired to be placed, and it was put there; that he did not say anything about his hurt at the time, but continued on at his work until noon, when he complained to the foreman, and was then sent to the Union Pacific's surgeon. In order to secure a complete mental picture of what transpired as plaintiff's evidence presents it, we here set forth his testimony bearing on this feature of the case and of what occurred. After testifying that they picked up the car and walked outside of the track, and that the foreman came along and helped them, he testified on direct examination:

"Q. Will you tell the jury how many of you lifted the car off of the track? A. Four.

"Q. On which side of the car—where were you standing with regard to the car? A. I was on the east side.

"Q. You were on the east side? A. Yes, sir; with another man.

"Q. And how were the other men arranged about the car? A. There was two men standing on each side at the first time we started to pick up the hand car to set it outside of the track I asked my partner, `Are you ready?' and he says, `All right.' We picked it up and walked out about four or five feet outside of the track, and the foreman came along and helped us too.

"Q. The foreman helped you too? A. Yes; all helped a little bit, and we went to put it a little farther out of the track, and we had enough room because on the north side is a kind of a hill and the foreman was in front on the side, on that way (indicating), and he was going to get out of the way so they could put the hand car a little backward up the track, and my partner he dropped it. He never gave me no answer at all; just dropped it like that, like he did it on purpose, and that time he jerked it once, but I did not feel very much pain. I felt kind of sick in the bell, and about six or eight minutes I stopped arid I did not do nothing. I felt kind of sick because he dropped it and never gave me no answer and I had to let it down.

"Q. On which side of you was your partner? A. On the left side.

"Q. And you were moving the car towards the left or right? A. Towards the north, to the right.

"Q. Towards the north and to the right? A. Yes.

"Q. Was the man that was lifting with you a tall man or short man? A. He was taller than me and heavier than me, too.

"Q. Taller than you and heavier than you too? A. Yes.

"Q. And did any of the other men who had hold of the car at that time let go? A. No.

"Q. They held on? A. Yes; the two men on the west side they held on with their hands. * * *

"Q. And did he let go with one hand or both hands? A. Both hands.

"Q. He let go with both hands? A. Yes, sir.

"Q. And what happened to your end of the car when he let go? A. All of the heavy weight came on me because—I don't know if he dropped it—an awful heavy weight came on me, just a kind of jerked me. * * *

"Q. How soon after this jerk came on you did you feel that pain?

"The Court: He said he had the pain right away.

"Q. Did you hold onto the car until it was finally placed in position? A. Yes.

"Q. What did you do immediately after you released the car? A. Why, I stopped, oh, one or two minutes, when we did not move it further and I let the hand car down, and after I stopped two or three minutes—I never looked at any watch—and I felt a pain, and I kind of looked at my partner; he was at my left side; because he admitted he did something wrong.

"Q. Did you go on with your work after that? A. Yes.

"Q. Just tell the jury how that pain acted; how long it continued, in other words. A. Just as soon as I got to work, just kind of felt like a bell headache, kind of sick, bell headache.

"Q. A cramp in your bowels? A. Yes; that is it. * * *

"Q. What kind of work did you do after you had set the hand car down? A. We tamped the ties with a shovel and sometimes with the picks; we have got tamping picks.

"Q. You said that was about 9:30 when that happened? A. No; from 8:30 to 9 o'clock.

"Q. From 8:30 to 9 o'clock? A. Yes.

"Q. Then, how long did you work? A. Until noon.

"Q. Until noon? A. Yes.

"Q. Now, did you notice—was there any difference in the way your side felt from the time you got hurt up until the noon hour? A. No; just the feeling of pain; that is all."

On cross-examination he testified as follows:

"Q. Now, this morning, you say there were five men on the hand car? A. Yes; five men on the hand car.

"Q. Do you remember who they were? A. There was one American; he was on the left of me, my partner; and one Italian and the others Mexicans, but I don't know their names, because I was a new man down there. I was there only a couple of weeks. * * *

"Q. And you unloaded the tools when you got to the point where you were going to work? A. Yes. "

"Q. And that left the bare band car there, and four of you men took hold of the hand car and lifted it off? A. Yes.

"Q. I believe you said that you were on the northeast corner? A. Yes.

"Q. And there was another man on the southeast corner? There was a man on each corner then, wasn't there? A. Yes, sir.

"Q. And it was the man to the left of you that you say dropped his end of the hand car? A. Yes, sir.

"Q. Now, did the hand car drop to the ground or not? A. No.

"Q. He just turned loose of it and you held the hand car? A. Yes, sir.

"Q. Did you see him turn loose? A. Yes.

"Q. Were you watching him at that time? A. I was not watching him, but I seen him when he turned loose. I looked at him because it came a heavy weight on me.

"Q. Do you know what caused him to turn loose? A. No; I don't know anything about it.

"Q. Now, there was still three men on the hand car, was there? A. Yes.

"Q. And you went right on; you held up your end and went right on lifting to complete the work? A. Yes.

"Q. You never said a word to anybody about it? A. No.

"Q. And you worked until noon? A. Yes.

"Q. And then you made the remark to the foreman that you felt pain in your side when you were lifting on the hand car? A. Yes.

"Q. And the foreman then made arrangement for you to go to see the Union Pacific surgeon? A. Yes, sir.

"Q. Now, that is the story as it happened? A. Yes, sir.

"Q. Now, when you saw this other man turn loose of his side and you held up one side of the hand car, did you have any difficulty holding it up? A. What was that?

"Q. Did you have any difficulty holding your one side of the hand car after the other fellow you say turned loose? A. He never said nothing to me.

"The Court: Listen, Mr. Karagas, after he let loose, did you hold it up ail right?

"A. Sure; I was holding it up.

"The Court: That tells it.

"A. Because if he did like he promised, he never was to let down on his...