Laughlin v. Missouri Pac. R. Co.

• Decision Date: 02 February 1923
• Docket Number: No. 22385.,22385.
• Citation: Laughlin v. Missouri Pac. R. Co., 248 S.W. 949, 297 Mo. 345 (Mo. 1923)
• Parties: LAUGHLIN v. MISSOURI PAC. R. CO. et al.
• Court: Missouri Supreme Court

248 S.W. 949

297 Mo. 345

LAUGHLIN v. MISSOURI PAC. R. CO. et al.

No. 22385.

Supreme Court of Missouri, in Banc.

February 2, 1923.

Motion for Rehearing Overruled March 3, 1923.

Appeal from Circuit Court, St. Louis County; J. Hugo Grimm, Judge.

Action by James Laughlin against the Missouri Pacific Railroad Company and another. From judgment for plaintiff, defendants appeal. Affirmed.

J. F. Green and H. E. Larimore, both of. St. Louis, for appellants.

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

DAVID E. BLAIR, J.

Action for damages for personal injuries. From a judgment for the plaintiff (respondent here), defendants have appealed.

The second amended petition, upon which the Case was tried, avers the corporate organization of the defendants and that they were engaged as common carriers for hire in interstate commerce; that defendant, Missouri Pacific Railroad corporation in Illinois, hereafter referred to as "Illinois corporation," owned and operated certain classification switch yards at Dupo, 111., used for making up trains, especially freight trains; that, under the provisions of a certain deed, the Missouri Pacific Railroad Company, hereafter referred to as "Missouri company," took over said switchyards and switching facilities at Dupo, and under the provisions of said deed assumed and agreed to pay all obligations and liabilities of the Illinois corporation, whether arising from contract or otherwise. No point is made in the brief that the Missouri company is not liable under said agreement, in the event that the Illinois corporation was liable for the injuries sustained by the plaintiff. For that reason no further details concerning said transfer or merger need be here set out.

The switchyards at Dupo were used for classifying freight. They include a main track, called a "hurdy gurdy" track, and on each side of the hurdy gurdy track were parallel tracks with which a large number of side tracks connected. The method of operation was substantially as follows: A train containing a number of freight cars would be pushed by an engine to a point in said yards called the "hump," and the cars were then cut off one at a time from said train as it passed over the hump and moved by gravity to, and stopped at, the proper place on the side track. Each car was ridden down from the hump by a switchman, known as a "hump rider," who stopped the car at the proper place by the use of hand brakes. After setting the car, the switchman returned to the hump preparatory to repeating the operation. To save the time of the hump riders in returning to the hump, a hurdy gurdy car was used. It was operated by gasoline and used the main track of the yard on which no cars were moved by gravity. Sometimes the hump riders rode back to the hump on switch engines which happened to be moving up the main or hurdy gurdy track at the time.

On July 3, 1917, plaintiff was employed by the Illinois corporation as one of such switchmen or hump riders. From 20 to 22, other men were similarly engaged. Plaintiff was riding a car to track 81, where a train to be sent out on the Cotton Belt Railroad was being made up. When said car reached the proper place upon said track he stopped it and went from such track to the hurdy gurdy track for the purpose of returning to the hump. It was then after dark, but the yards were well lighted by electricity. A switch engine operated by the, Illinois corporation was moving backward toward the hump. Plaintiff stepped between the rails in front of said engine and signaled to the engineer his intention to get upon the rear footboard of the locomotive for the purpose of riding back up the hump. He claimed the engineer was looking directly toward him when he gave the stop signal and appeared to see his signal and immediately reduced the speed of the locomotive until it reached a point within a few feet of plaintiff, when its speed was suddenly increased instead of being brought to a stop to permit the plaintiff to get upon the footboard. Plaintiff claimed he did not have an opportunity to get out of the way after such speed was accelerated and jumped for the footboard to save himself, and by reason of the rapid motion of the engine was thrown off. His injuries resulted in the amputation of his left arm. The petition alleged negligence on the part of the Illinois corporation in failing to bring the engine to a stop in response to plaintiff's signal to permit him to board the engine and in suddenly increasing the speed of the engine.

The Illinois corporation denied generally the allegations of the petition, and pleaded that the injury was due to the negligence of plaintiff in attempting to board the footboard of the locomotive while it was in rapid motion and while plaintiff was standing between the rails of the track, in violation of rule Q-6, which provided as follows:

"All persons are strictly forbidden to board engines or cars while they are in too rapid motion. Under no circumstances must they stand on track and board engines or cars when same are approaching them."

Said defendant further alleged that plaintiff was not a member of the crew operating said engine and had no connection with the operation of said engine and was not instructed to ride said engine and was not in performance of any duties for said defendant when injured, Said defendant also pleaded assumption of risk on the part of plaintiff, and that plaintiff and those operating the engine were fellow servants, and that under the laws of Illinois the master is not liable for injuries received by one servant through the negligence of a fellow servant. Said defendant then alleged that to permit a recovery by plaintiff would violate several different sections of the Constitution of the United States. The answer of the Missouri company was a general denial.

The reply of the plaintiff to `the answer of the Illinois corporation denied contributory negligence of the plaintiff and violation of rule Q-6, and denied that such rule was in force or brought to plaintiff's knowledge, and alleged that plaintiff had no knowledge thereof; that if defendant ever had any such rule, it was habitually violated; that it was the habitual custom of switchmen to get on the footboard of switch engines while such engines were moving toward them, all with the knowledge and acquiescence of defendant's superior officers in charge and in control of said switchmen; that plaintiff was engaged in the business of defendant at the time he was injured and carrying on his work in accordance with the directions and instructions of the superior officers of said defendant at such time.

The evidence tended to show that rule Q-6 had been promulgated and was in possession of the plaintiff, and that switchmen habitually disregarded same and were accustomed to get upon the footboard of engines moving toward them while standing in the track, and that the foreman and superintendent of the yards had full knowledge of such custom. A trial before a jury resulted in a verdict for plaintiff for $10,000.

I. Appellants contend that their instructions in the nature of demurrers to the evidence at the close of the plaintiff's case and at the close of all the testimony should have been given. Since defendants did not stand upon their demurrers at the close of plaintiff's evidence, the propriety of submitting plaintiff's case to the jury must be determined upon all the evidence introduced. As appears from appellants' brief, the basis for this contention is that plaintiff failed to show that he was employed in interstate commerce at the time he was injured, and, not having so shown, his recovery is barred by his contributory negligence. If plaintiff was employed in interstate commerce, he may recover, even if his contributory negligence be conceded and such contributory negligence can only be considered by the jury on the question of the reduction of the amount of damages. Federal Employers' Liability Acts of April 22, 1908 (U. S. Comp. St. §§ 8657-8665), as set out in Richey on Federal Employers' Liability Acts, p. 654, § 3; Erie R. R. Co. v. Downs, 250 Fed. loc. cit. 420, 162 C. C. A. 485.

Defendants offered no testimony concerning the acts of its engineer in operating the engine. The plaintiff's testimony tended to show that the engineer was looking right at him when he was standing between the rails and gave the stop signal, and that the engineer, apparently in response to such signal, slowed down the speed of the engine to the rate of two or three miles per hour, until such engine was within two or three feet of the plaintiff, and then suddenly increased the speed of the engine. This testimony, in our judgment, made out a case of negligence on the part of the engineer. It makes no difference whether the plaintiff was a member of the crew working with said engine or not. The testimony tends to show that, with the knowledge and acquiescence of the said defendant, it was customary for hump riders to ride such engine when signaled and that the engineer saw plaintiff give the stop signal.

Plaintiff's testimony tends to show that the freight car he had just ridden down from the hump to track 81 was a loaded Cotton Belt car and that he was returning for another car for the same track and destination. The Cotton Belt carried no loaded cars destined for Illinois points. That road had no tracks in Illinois and used the tracks of the Missouri company to Illmo, Mo., from which point it used its own tracks. Plaintiff testified that he was returning for another car for the same destination. This evidence was sufficient to justify the finding by the jury that the plaintiff, at the time of his injury, was engaged in interstate commerce, and that his employer was likewise engaged.

Even if the next work of the plaintiff had been to ride an intrastate car. his act in returning from handling an interstate car was so directly and immediately connected with the movement of an...