Lorton v. Missouri Pac. R. Co.

• Decision Date: 19 December 1924
• Docket Number: No. 24631.,24631.
• Citation: 267 S.W. 385
• Parties: LORTON v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

267 S.W. 385

LORTON v. MISSOURI PAC. R. CO.

No. 24631.

Supreme Court of Missouri, Division No. 1.

December 19, 1924.

Motion for Rehearing Overruled December 30, 1924.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Hazel R. Lorton, administratrix of the estate of Fount H. Lorton, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Edward Z. White, James F. Green, and Merritt U. Hayden, all of St. Louis, for appellant.

Mark D. Eagleton, of St. Louis, for respondent.

SEDDON, C.

This is an action by plaintiff as administratrix of the estate of her deceased husband, Fount H. Lorton, for the benefit of herself and her two infant children, to recover damages for his death under the Federal Employers' Liability Act (U. S. Comp. St. §§ 865(-8635), and section 2 of the Safety Appliance Act (U. S. Comp. St. § 8606).

The petition, in addition to other specific acts of negligence pleaded, alleges that deceased, on November 20, 1921, was in the employ of defendant as a switchman, and was engaged in his duties for defendant in its railroad yards in St. Louis, Mo., with a switching engine and crew in moving and switching cars in interstate commerce, and while deceased was necessarily between two such railroad cars for the purpose of adjusting or fixing the coupling device thereof, he was crushed and fatally injured between them as a direct and proximate result of defendant's negligence, and that by reason of defects and insufficiency, due to defendant's negligence, in its cars, appliances, and equipment, and its violation of the provisions of the aforesaid laws of the United States, in that said car was not equipped with couplers coupling automatically by impact, or which could be uncoupled without the necessity of men going between the ends of said cars, the deceased was necessarily required to and did go between said cars and was injured, and as a direct and proximate result of defendant's negligence and the violation of said law, he received the injuries which resulted in his death. Defendant's answer was a general denial.

The trial resulted in a verdict for plaintiff in the sum of $20,000, and from the judgment thereon defendant has appealed to this court. Plaintiff's intestate, Fount H. Lorton, was fatally injured while in defendant's employ as a switchman, about 6 o'clock in the evening of November 20, 1921, after dark. He was injured in the Eighteenth street railroad yards of defendant, which consist of a number of tracks, extending in an easterly and westerly direction from Eighteenth street on the east to Twenty-First street on the west. The tracks curve somewhat to the south as they extend toward the west. Deceased was a member of a switching crew consisting of a foreman, Martin, and four switchmen, Lorton, Gregg, Linton, and McKee. The switch engine was manned by Engineer Harris and Fireman Hoops. The other members of the crew were two switch tenders, Bowers and Walsh. Five members of the crew testified as witnesses at the trial. Switchmen Gregg and Linton and the engine fireman, Hoops, appeared as witnesses for plaintiff. The engineer, Harris, and the crew foreman, Martin, appeared as witnesses for defendant.

A freight train, consisting of some 19 or 20 cars, had come in off the road, and had been left standing on one of the tracks in the yards. Several of the switching crew, including Lorton, the deceased, rode up on the footboard of the switch engine to Twenty-First street, and the engine headed in on the west end of the track, and coupled onto the west end of this string or train of cars. The switch engine was headed east, so that the engineer was on the south or right-hand side of the engine. After the engine had coupled onto the train, it started to shove the train of cars down the track toward the east. The switching movement was being made on track No. 11. The crew distributed themselves along the train. The deceased, Lorton, was known as the head man, and his regular or usual position was next to or near the engine, and he took a position on top of either the next or the second car from the engine. The foreman, Martin, as. sumed a position near the east end of the train, close to Eighteenth street, while switchmen Gregg and McKee were located somewhere east of Martin. Switchman Linton took a position near Martin, just east of the Eighteenth street viaduct. It appears to have been a duty of Lorton, as head man, to pass the signals from the foreman and the other switchmen along to, the engineer. In other words, as expressed by one witness, "he is the last man to give the signal" to the engineer. The signals on this particular switching movement were given either from the top of the train or on the south side, or engineer's side, of the train. It being dark, the signals were given by lighted lanterns. After the engine had pushed the train a short distance toward the east, the engineer received a stop signal, given, as he testified, by Lorton from the top of the box car next to the engine. Upon stopping the engine, a separation of the train occurred about 5 or 6 cars from the engine. Thirteen or 14 cars on the east end of the train drifted to the east along the track, while 5 or 6 cars attached to the engine on the west end remained standing still on the track. Some of the crew appear to have immediately realized, or thought, that a separation or parting of the train had occurred. Switchmen Gregg and McKee, who were with the east end of the train, boarded the drifting section and brought it to a stop. When the separation occurred, Switchman Linton and Foreman Martin were together just east of the Eighteenth Street viaduct about two car lengths west of the extreme east end of the cut of cars. Thinking the train had broken in two, Martin sent Linton up toward the west end to see what was the cause. Linton walked up to the west end of the east string of cars and saw a break or gap, he testified, of three or four car lengths. He says he gave the engineer a signal to move easterly to close up the gap but, upon observing a defective coupler on the west end of the west car of the east string, he stopped him again when the cars attached to the engine on the west were within 25 to 50 feet of the east string of cars. Linton, however, is the only witness who testified that there was more than one movement of the engine after the separation took place. All the other witnesses testified that there was but one movement after the separation, the one in which Lorton met with his fatal injuries.

Linton testified he noticed that the knuckle or lock pin on the coupler on the west end of the west car of the east string or cut of cars was defective or inoperative. A king bolt (Used ordinarily as a part of another appliance), larger in size and dimensions than the regular lock pin, was being used in place of the regular lock pin. According to the testimony, this had the effect of preventing the automatic coupling and uncoupling of the cars. Linton testified it was an impossibility to make a coupling by impact. There is no question on the record but that the " coupler was defective. As to how long it had been defective, and when the king bolt had been inserted in place of the regular lock pin, the record is silent. Linton said when he discovered the defective or inoperative coupler he saw Lorton on top of the second head car from the engine. Linton then went east to report to Foreman Martin that "we got a bad order knuckle up there we can't couple into; we have got to set it out or shove in." He testified he did not notice any signal given by the foreman after that conversation, but that shortly afterward there was a Movement of the train eastward closing up the cut of 25 or 50 feet, and that the train moved east 18 to 22 car lengths. His attention was attracted by "hollering; a kind of distress cry." He gave a stop signal, and going west he found Lorton lying on the lead at No. 11 switch, from which No. 12 leads off. It took witness about three seconds to go from where he had been when he heard the distress cry to where Lorton was. He was the first man to reach Lorton, whom he found lying on his back with his feet to the rail, the right foot being crushed and the stomach broken in on the right side.

The engine fireman, Hoops, testified that after the separation took place and the engine. with cars attached remained standing, "I got off the engine to go down to Eighteenth street to get a drink; to go to the fountain there; so I walked down alongside the cut, and Lorton got off at the second or third car—exactly, I couldn't tell— he climbed down and we both met on the ground, and me and Lorton walked down along the cars and I seen the cut, the break, just about when Lorton seen it, and I seen it was what we call on the road a jimmied knuckle, and I said to Lorton, `There is a jimmied knuckle for you,' and he says, `Yes'; and Lorton walked in and I walked on down to the fountain." The two walked down on the south side of the train and they were about 20 to 30 feet from the broken knuckle when the conversation took place. They saw it with Lorton's lamp, and Lorton walked in to the jimmied knuckle, and Hoops went straight east to the fountain to get a drink. After getting a drink, Hoops talked with Bowers, the switch tender, and then "they come shoving down with the whole train, and I says to Bowers, `He sure did fix that jimmied knuckle in a hurry.' That is anti thought, and how any man had that fixed, and the train shoved on down." Hoops went to get another drink at the fountain, and Bowers then informed him that Lorton was run over, whereupon he ran up to Lorton and found Linton there. When Hoops left Lorton at the break both ends of the cut or break were standing still.

The engineer, Harris, testified that he was sitting on the right or south side of the engine. There had been a break in the train and some 8 cars were coupled onto...