Kurn v. Stanfield, No. 11615.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER, WOODROUGH, and THOMAS, Circuit
• Citation: 111 F.2d 469
• Parties: KURN et al. v. STANFIELD.
• Docket Number: No. 11615.
• Decision Date: 24 May 1940

111 F.2d 469 (1940)

KURN et al.
v.
STANFIELD.

No. 11615.

Circuit Court of Appeals, Eighth Circuit.

May 1, 1940.

Rehearing Denied May 24, 1940.

111 F.2d 470

C. H. Skinker, Jr., of St. Louis, Mo. (A. P. Stewart and J. W. Jamison, both of St. Louis, Mo., on the brief), for appellants.

Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton, of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

The trustees of the St. Louis-San Francisco Railway Company appeal from a judgment for personal injuries recovered by Marion F. Stanfield under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. He was concededly injured while engaged in interstate commerce and the case is within federal jurisdiction. Terminal R. Association v. Kimbrel, 8 Cir., 105 F.2d 262.

Marion F. Stanfield was a brakeman, fifty-six years of age, having had twenty-five years experience with the railroad. He was injured at half past three o'clock in the morning of August 3, 1937, when a freight train which he was directing in switching movements backed up without having received a signal so to do. Stanfield did not see the cars coming toward him in time to get off the track and was run down; his right leg was crushed and mangled so that it had to be amputated about midway between the knee and ankle.

The accident occurred at Sikeston, Missouri, a small town in the southeastern part of the state on the railroad's line from

111 F.2d 471

Chaffee, Missouri, to Memphis, Tennessee. Stanfield was working as a member of the crew of a freight train of forty-nine cars which came into Sikeston from the north; some of these cars were to be left in Sikeston, and a Rock Island box car was to be picked up from a siding there. After several switching operations had been accomplished the train had been cut to twelve cars, and these had been backed up the so-called house track siding where Stanfield coupled them to the Rock Island box car. Cheatham, the conductor of the train, at this point handed his orders to Stanfield and told Stanfield to take charge of further movements, the orders being to move the train back off the house track south onto the main line, to come back up the main line to a position north of the switch and there cut off the Rock Island box car, then to go back and reenter the house track to leave ten of the remaining twelve cars there. The engine was on the south end of the twelve cars and faced south. When Stanfield signalled the engineer to pull south out of the house track the engineer did not stop on the main track, but went on beyond into a new passing track some 450 feet south of the house track switch. Stanfield then walked back north to reopen the switch to the house track and met Conductor Cheatham who had finished his local business and was walking south to attend to some matters on another track there. Cheatham asked if Stanfield was going to be able to get his cars set out in time within regulations, which meant by 3:47, the time the next through train coming on the main track was scheduled to leave the next town north. Stanfield said yes, estimating his time as more than adequate. He then continued on to the house track switch

About 172 feet north of the house track from the switch there was a grade crossing with Ruth Avenue, in Sikeston. Conductor Cheatham had protected this crossing, in accordance with regulations, when the train pulled in to pick up the Rock Island box car, but now that Cheatham had gone about other business Stanfield undertook the duty of protecting the crossing and planned to also check clearance for the ten cars which were to be left on the house track. He had to cross the track to be seen for signals. But he had no more than thrown the switch and started up and across the track a few steps when he heard a "racket", and turning his head saw the lead car of the backing train within half a car length of him coming down the track. The switch stand was south of the point where the rails for the house track intersected with the main line track, so that as the house track switch was thrown he would be safe on the main line track about fourteen feet north of the switch. He was inside the east rail, about a foot from it, but was facing north and a little west. When he heard and saw the cars he tried to go ahead up the track and outrun them, but he had not taken more than two steps when he was hit and run over some eleven and a half or twelve feet from the switch stand. Some three or four cars ran over him before the train stopped. Conductor Cheatham was the first to reach him. Stanfield was taken to the hospital where his leg was amputated. He suffered great pain and up to the time of trial had not been able to get an artificial leg which could be fitted so as to meet complications and be worn comfortably. As often happens with such injuries, nerve lesions caused him to feel pain in parts of his foot which had been amputated. During the two years which elapsed between injury and trial he had only had employment as an election clerk during an election.

In his complaint, brought in the federal court under the Federal Employers' Liability Act, Stanfield alleged that while he was acting in the scope of his duties in interstate commerce he was negligently injured through the violation of the railroad's rules and customs, particularly in that the engineer started the train without a trainman on the front end of the leading car and without a light on this car, and without stopping the speed of the cars or slackening them, and so unnecessarily and negligently ran him down, when in the exercise of due care the employees operating the train would not and should not have done so. The trustees by their answer denied that the alleged custom existed or that there was necessity of having a trainman or light on the front end of the leading car during switching operations, but conceded that there were rules requiring them to give warning by engine bell when moving and to start only on signal and to protect crossings. They denied that Stanfield was injured through their negligence and further stated that he had assumed the risk of being hit while venturing upon the tracks during the course of switching operations.

111 F.2d 472

The trustees introduced no evidence at the trial, and the case went to the jury on the pleadings and the testimony of the plaintiff and his doctor as the sole evidence. The trustees' answer had admitted that there was a rule and custom not to start trains except upon proper signal, and they introduced no evidence to contradict Stanfield's testimony that under the circumstances a signal from him was required and had not been given. Nor did they attempt to prove that he was not accurate in stating that the night was dark and a car could not be seen over twenty feet, or half a car length away, or that the engine bell of the type used on that "4000" engine could hardly be heard to the engine's rear, even in the cab, since the bell threw its sound forwards. The court overruled a motion of the trustees for a directed verdict and submitted the case to the jury upon the theory that the trustees could be found negligent in starting the train without proper signal if Stanfield had not assumed the risk. On the measure of damages the court charged: "Now if your verdict be for the plaintiff you should allow the plaintiff such damages as in your good judgment will compensate the plaintiff for the pain and suffering that has occurred, for any loss of earnings that has occurred or will occur in the future, and for any future pain and suffering which you conclude will result from his injury, not to exceed...