Lock v. Chicago, B. & Q. R. Co.

• Citation: 281 Mo. 532,219 S.W. 919
• Decision Date: 16 February 1920
• Docket Number: No. 19488.,19488.
• Court: Missouri Supreme Court
• Parties: LOCK v. CHICAGO, B. & Q. R. CO.

219 S.W. 919

281 Mo. 532

LOCK v. CHICAGO, B. & Q. R. CO.

No. 19488.

Supreme Court of Missouri, in Banc.

February 16, 1920.

Rehearing Denied March 15, 1920.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

Action by Fred K. Lock against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

H. J. Nelson, of St. Joseph, Bailey & Hart, of Brookfield, Palmer Trimble, of Keokuk, Iowa, and M. G. Roberts, of St. Joseph, for appellant.

A. G. Knight, of Trenton, for respondent.,

WALKER, C. J.

This is an action predicated on the federal Employers' Liability Act, for personal injuries. It was brought by the respondent against the appellant in the circuit court of Linn county, where it was tried in March, 1916, resulting in a verdict in favor of the respondent in the sum of $10,000. A review of the judgment rendered thereon is sought by the appellant.

Appellant maintains, at Hannibal, a terminal yard, which has thereon various buildings, a main, transfer, and switching tracks, necessary in the operation of its business as a railway company. Respondent, at the time of his injury, was employed in this yard as a switch tender, his hours of labor being from 7 p. m. to 7 a. m. His duties required him to open and throw switches and align them for the passage of trains. In so doing, it became necessary for him at times to pass over the tracks, switches, and rails in the yard. He had been thus employed by the appellant for 26 days prior to his injury, which occurred December 11, 1915, at about 4 o'clock in the morning. The weather at the time was dark and rainy. Just prior to his injury, respondent had aligned a switch for a train which was to pass through the yard en route to St. Louis. Immediately thereafter he started to walk toward and across the main lead, giving signals as he went with his lantern, to the train for which he had aligned the switch, to proceed. By the "main lead" is meant a main track which ran diagonally across the yard from which other tracks radiated to switch and repair parts of the yard. One of these tracks was known as lead to switching tracks No. 21 to No. 25, and is designated in this record as "21 lead." After giving the signals, and while respondent was in the space between the main lead and 21 lead on his way to a shanty in the yards where he stayed when not engaged in the discharge of his duties, and while looking ahead to determine his course, and to see if the train for which he had aligned the switch was approaching, he stumbled over a brake beam lying between the main track and 21 lead, and fell to the ground. In falling, he struck on his side and back, and fell lengthwise of the track. As he attempted to arise, a switch engine approaching on the 21 lead knocked him down again, caught him, and dragged him about 20 feet, running over and crushing his right hand and wrist. He also received a disfiguring gash over his right eye. Arising after the switch engine had passed, he saw for the first time the brake beam over which he had fallen in the first instance The injury he received necessitated the amputation of his right hand, and a portion of the arm, about two or three inches above the wrist; and the gash above his eye resulted In an injury to his sight. His employment in interstate commerce is conceded.

At the time of his injury, he was 23 years of age, in a good state of physical health, and was earning $2.30 per night. The yard where the injury occurred was the private property of the appellant. It was inclosed with a solid plank fence, which was placarded on the entrance to same with notices forbidding trespassing. Watchmen were kept to enforce this injunction.

Witnesses for appellant testified as to a statement alleged to have been made by the respondent at the yard office immediately after the injury, to the effect that, when he was signaling the train he had aligned the switch for, he stepped back out of its way and was struck by the switch engine, knocked down, and, in putting his hand on the rail to put himself out of the way, it was run over and crushed.

Various collateral facts and circumstances were adduced in evidence by appellant to sustain the conclusion that its employés had no part in or knowledge of the location of the brake beam, and that, soon after the accident, it was not to be found between the tracks.

I. Appellant contends that its demurrer to the evidence should have been sustained First, because the respondent's statement ac to the location of the brake beam was not corroborated, but was shown by circumstances to be false; and, second, that appellant was not shown to have had either actual or constructive notice of the location of the brake beam, as stated by the respondent. The latter testified affirmatively to the fact of the brake beam's location, and that it constituted the obstruction which caused his fall in the first instance. It was shown that at different times cars were repaired in the yard, and their parts separated, and that it was customary when such repairs were in progress to take out brake beams and drop them near at hand where they could subsequently be removed by a crew thus engaged; that a car was being repaired on a track near the scene of the accident on the day preceding the morning the respondent was hurt. These facts cannot be otherwise construed than as circumstances confirmatory of respondent's testimony, which is not weakened by the fact that he did not know who placed the brake beam between the tracks or its location there prior to the accident, or how long it had been there, or that it was not seen there the day preceding and immediately following the accident. The assumption, therefore, based upon the circumstances adduced by the appellant to establish, first, that the brake beam was not where it was stated to have been by the respondent, and, second, that it mysteriously disappeared, do not, in our opinion, tend to weaken the force of the latter's testimony. The first attempts by an array of circumstances to contradict affirmative testimony; and the second assumes that, if the brake beam was as located by the respondent, it mysteriously and unaccountably disappeared. Certainly it could not have accorded with any rational purpose of the respondent to cause its removal. If it did mysteriously disappear, as contended by appellant, its disappearance could have redounded only to the benefit of the appellant. Other arguments are adduced by appellant upon circumstances of like character to the foregoing, for the purpose of destroying the force of the respondent's testimony.

They do not impress us as having a tendency to accomplish this end.

The quantum of proof necessary to sustain a verdict in a case of this character may perhaps be more readily determined by the statute upon which the action is based. It is as follows:

"That every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment." Section 1, Federal Employers' Liability Act (U. S. Comp. St. Supp. 1911, p. 1322; U. S. Comp. St. 1916 or 1918, § 8657).

This section renders every railroad company liable for the negligence of any of its officers, agents, or employés, and their negligence is that of the company. The leaving of the brake beam, therefore, at the point where it was shown to have been left, was a negligent act and bound the company as effectually as if it, as principal, had left it there, and the respondent was not required to show a negligent placing of the brake beam at the point where it was left. Mondou v. R. R., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38...