Lovett v. Kansas City Terminal Ry. Co.

• Decision Date: 11 April 1927
• Docket Number: No. 25515.,25515.
• Citation: 295 S.W. 89
• Parties: LOVETT v. KANSAS CITY TERMINAL RY. CO.
• Court: Missouri Supreme Court

295 S.W. 89

LOVETT v. KANSAS CITY TERMINAL RY. CO.

No. 25515.

Supreme Court of Missouri, Division No. 1,

April 11, 1927.

Appeal from Circuit Court, Jackson County; Edward E. Porterfield, Judge.

Action by Walter H. Lovett against the Kansas City Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

S. W. Sawyer, George J. Mersereau, John H. Lathrop, and Eugene E. Montgomery, Jr., all of Kansas City, for appellant.

Max M. Muenich and Madden, Freeman & Madden, all of Kansas City, for respondent.

RAGLAND, J.

This case cames to the writer for opinion on reassignment. It is an action for personal injuries alleged to have been negligently caused, and is bottomed on the federal Employers' Liability and Safety Appliance Acts (U. S. Comp. St. §§ 8657-8665, and § 8605 et seq.).

The plaintiff was in the employ of defendant as switchman. The casualty occurred August 19, 1921, while a switching operation was in progress near the loading docks of the Montgomery Ward & Co. plant in Kansas City, Mo. Defendant's main yard was located at Armourdale, across the state line, in Kansas. According to the custom in vogue at that time, defendant hauled empty freight cars from its main yard each morning and placed them alongside the docks just mentioned to be loaded. Late in the afternoon it took the loaded cars to its main yard, to be there distributed to certain interstate carriers. The loading dock with which we are concerned extended north and south. It was 500 feet long, about 5 feet high, and was constructed of concrete. Paralleling it, and immediately west of it, there were two tracks of railroad. The space between the side of an ordinary box car standing on the east track and the dock was 8 inches. The two tracks just referred to came together at a switch which was 80 feet north of the the north end of the dock. They were owned by Montgomery Ward & Co., but they connected with defendant's tracks, and through an arrangement with the owner were used daily by it for the purposes just mentioned. On the afternoon of the day heretofore referred to, when defendant's switching crew came to remove the loaded cars to its main yard, there were seven cars standing on the east track along the dock. All were loaded and ready to be moved except the sixth car, counting from the north. The sixth was partially loaded. In order to get all the loaded cars and leave the sixth, it was necessary to couple all of them together, pull them north past the switch, kick the seventh south on the west track, pull north of the switch again, and then kick the sixth south on the east track. This was undertaken. The three members of the crew immediately engaged in the proceeding were the engineer and the two switchmen, plaintiff and one Bagwell. After the seventh car had been shoved down on the west track and the engineer had pulled the string of cars north again past the switch, he then proceeded to move (push) them south on to the east track; the switch having been thrown in the meantime. Bagwell was standing on the east side of the track near the switch, and plaintiff was on the east side about midway between the switch and the dock; that is, about 40 feet north of the north end of the dock.

The switching operation then to be per, formed was this: When the north end of the sixth car reached plaintiff, he was to uncouple the sixth from the fifth and then give the engineer a stop signal, so that the engine and the string of five cars would come to a stop and the sixth roll on south alongside the dock. When the cars approached plaintiff, they were moving at the rate of from 5 to 6 miles an hour. According to plaintiff's testimony: As the north end of the sixth car came along he grasped the lever of the automatic coupler by which the lock pin is raised so as to permit the opening of the knuckles, and endeavored to lift the pin. The effort was not successful, so he "trotted" along with the car and tried a second time to lift the pin with the lever, but without avail. He then discovered that the chain connecting the end of the lever with the top of the pin was too long, that by reason of the "slack" in the chain the pin could not be lifted with the lever. He then let loose of the lever and reached, over between the cars and with his right hand, lifted the pin on the fifth car (the pin lift lever of that car was on the opposite side), at the same time giving a stop signal with his left. At the time he completed the uncoupling, and was turned from the opening between the cars, he was 8 or 10 feet from the dock and could have gotten entirely away from the cars before he reached it had his action not been impeded by the catching of his clothing on some projection from the corner of the fifth car. As it was he was caught by that car and rolled in the 8-inch space between its side and the dock. The evidence bearing on the nature and extent of his injuries caused thereby will be referred to in a subsequent paragraph.

According to defendant's witnesses Bagwell, the foreman of the crew, who was back some distance on the loading dock walking north, and the engineer, plaintiff grasped the pin lifter at the north end of the sixth car when it reached him, and thereafter "trotted" along beside the moving car, trying all the while to lift the pin, until he reached the dock, when he was drawn into the narrow space between it and the car. They did not see him reach in between the cars at any time.

There was nothing unusual in either the movement or the speed of the engine or cars. The plaintiff was entirely familiar with the relative positions of the loading dock and the track, and he knew that there was not sufficient space between the dock and cars moving along the track for him to stand or work. He admitted that when he discovered that the pin lifter would not work, he could by signal have stopped the moving cars and then gone in between them and lifted the pin; but he testified that that was not the customary way of doing the work in which he was then engaged, and there was no evidence to the contrary.

Defendant introduced in evidence its book of rules, calling specific attention to rule No. 1017, under the heading, "Rules for Passenger Brakemen." After setting forth certain requirements with reference to "the making up, switching, and putting away of the train," the rule contained this injunction:

"Never go between the cars for the purpose of coupling or uncoupling, or the making of any adjustments, without first notifying the engineman and properly protecting yourself."

The engine and train of cars which were moving in the switching operation in which plaintiff was injured did not constitute a "train," as elsewhere defined in the book of rules. Prior to his injury plaintiff had signed and delivered to defendant a questionnaire submitted by it to its brakemen calling for their knowledge touching certain of defendant's rules. In answer to the question whether he understood the provisions of section 1017, plaintiff said "Yes." And in answer to the question, "Do you understand that you must not go between cars while they are moving?" He had written, "Yes." This last question apparently referred to a rule designated "Special 48," but no such rule was put in evidence. Plaintiff testified that at the time he gave these answers he was working as a switchman in the passenger service and as such helped make up "live" trains.

The petition, after setting forth the time, place, and manner of plaintiff's injury, alleged:

"That the defendant was negligent, in that the coupler between said cars heretofore mentioned was defective, in that it failed to operate by means of the pin lifting device requiring plaintiff to enter between the ends of the cars to uncouple same as aforesaid."

The answer averred that plaintiff's own negligence and his violation of certain of defendant's rules, heretofore referred to, were the sole causes of his injuries. It further pleaded contributory negligence and assumption of risk.

At the close of plaintiff's case in chief, and again when all the evidence was in, defendant asked an instruction in the nature of a demurrer to the evidence. The request was in both instances refused.

At the instance of plaintiff, the court gave, among others, instruction B, as follows:

"If you believe and find from the evidence that the defendant, at the time and place in question, was engaged in commerce between states as defined in instruction A, then it was the duty of defendant not to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers which could be uncoupled without the necessity of men going between the ends of the cars, and, if you believe and find from the evidence that at the time and place in question the car which was to be cut off was not equipped with a coupler which could be uncoupled on the east side of the cars without the necessity of plaintiff going between the ends of the cars, then the defendant was guilty of negligence, and, if you believe and find from the evidence that as a direct result of said negligence, if any, plaintiff had to and did go between the ends of the two cars to uncouple them, and that, as a direct result of going in between the ends of the cars to uncouple them, he was caught, rolled, and injured between the loading dock and the car, then your verdict should be in favor of the plaintiff.

"You are further instructed in this connection that, if defendant was negligent as above defined, and that as a direct result thereof plaintiff was injured, then the plaintiff did not assume the risk of being injured by going between the ends of the two cars to uncouple them, if you so find, nor does the contributory negligence of plaintiff, if you find that he was negligent in going between the ends of the cars, constitute any defense to his cause of action, nor should such contributory negligence, if any, diminish his damages,...