Mann v. St. Louis-San Francisco Ry. Co.

• Decision Date: 17 May 1934
• Docket Number: No. 31597.,31597.
• Citation: 72 S.W.2d 977
• Parties: MANN v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

72 S.W.2d 977

MANN v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 31597.

Supreme Court of Missouri, Division No. 2.

May 17, 1934.

Rehearing Overruled June 19, 1934.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Albert G. Mann against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed conditionally.

E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

J. V. Jones and Madden, Freeman & Madden, all of Kansas City, for respondent.

WESTHUES, Commissioner.

This is an appeal from a judgment in respondent's favor in the sum of $40,000. Respondent, plaintiff below, brought suit against appellant, defendant below, to recover damages for personal injuries alleged to have been sustained while plaintiff was acting as a switchman in the defendant's employ at the Rosedale yard in Kansas City, Kan. The evidence discloses, and it was admitted, that at the time plaintiff was injured he was engaged in work connected with the movement of cars engaged in interstate commerce. Respondent in his brief says: "Appellant in statement, brief and argument has so distorted the facts in evidence in this cause as to require from respondent a complete statement."

Appellant in the reply brief says: "Misstatement of the record is the outstanding feature of respondent's brief and his chief, if not only, reliance against appellant's various assignments of error."

We have not taken the trouble of ascertaining the truth of either charge. The facts related in the course of the opinion have been taken from the record proper.

On September 17, 1928, a switching crew, of which plaintiff was a member, was switching cars in the yard, and in the course of this work it became necessary, at about 11 a. m., to push five cars across two main line tracks, Nos. 1 and 2, in a northeasterly direction to a repair track known as track 7. The first car and the one immediately following were flat cars loaded with long poles. There was an empty space of about three or four feet at the front end where Flanders, the foreman of the crew, was riding. Plaintiff had crossed the main line tracks for the purpose of throwing a switch in order to permit the string of cars to pass onto track No. 7. At this time the string of cars was about to cross, or was crossing, over the main line tracks. Plaintiff testified that Flanders signalled him to board the freight car; that he proceeded to obey the order. As to what happened then plaintiff's evidence was as follows:

"Q. Now, what did you do with reference to getting on the car? Just show the jury and tell the jury how you got on and where you were when you were thrown. A. I put my left foot in the stirrup and took hold of the grab irons, the handle hold, with my hands and raised myself up and put my right knee up on the deck of the car and my hands were there on the floor of the car, and just at that moment this engineer stopped this drag with this awful jerk and threw me on off ahead of there about ten or eleven feet and then run over me. * * *

"Q. Was your whole body and limbs between the rails? A. Yes, sir.

"Q. Now, after you were thrown what did you say with reference to the car stopping? A. The cars stopped.

"Q. How long? A. Probably a second or two.

"Q. And then what happened? A. It started up and run over me.

"Q. Now, explain to the jury why you did not get up and get out of the way. A. Well, when I was jerked off there I was stunned a little and the movement started up so quick that I could not get off. I did not have time to get off.

"Q. Then, what did you do to protect yourself? A. I laid down in the tracks and let the truck pass over me and then proceeded to go out or try to get out after that truck had passed over me and when I tried to go out, then is when my legs were caught and mashed and broken.

"Q. Before that, did you see Flanders make any movement? A. Yes, sir.

"Q. What did he do? A. He jumped off. He was on the ground and gave a stop signal. * * *

"Q. Now, when was it you saw him do that? A. Well, I was on the ground there in front of that car and I looked back at this car and I saw it stopped and I saw him on the ground giving a signal. * * *

"Q. Was that signal that you spoke of Mr. Flanders giving, was that given while the cars were still standing or after they started to move again? A. When it was standing was the signal that he gave.

"Q. Now, when you were thrown off there, Mr. Mann, how fast was the cars running? A. Five or six miles an hour.

"Q. And can you give us an idea how abruptly the cars were stopped? A. Well, just as hard as he could stop them. He made an emergency application of the air and they were stopped.

"Q. Was there air on the cars, connected with the cars, or just on the engine? A. Just on the engine. * * *

"Q. How far did the car go after it started up the second time before it stopped? A. Somewheres between thirty and forty feet.

"Q. Now, you were caught by what trucks? A. The south trucks of the north car.

"Q. And that car was about what length? A. About forty feet.

"Q. Where are the trucks located with reference to the end of the car? A. They were within a few feet of each end."

Plaintiff also testified that the engineer, Cummings, saw plaintiff attempt to climb on the car. Witnesses for plaintiff and defendant agree that when plaintiff was injured the drag of cars had not cleared the main line tracks. A passenger train was due to pass over one of these tracks within a few minutes.

E. G. Swinehart, an employee of a stone company, testified for plaintiff. This witness stated that he was in the yard at the time and saw the accident. His evidence was in part as follows:

"Q. Now, just tell what you saw. A. Well, as they were coming in there and I was—I looked down there and there was one man standing on the front end of the car.

"Q. One man what? A. There was one man standing on the front end of this switching crew that was coming in with these cars and the other man was just crawling up on this car and the train just made a stop and it just threw him, that one man, right out towards me.

"Q. Where did it throw him with reference to the rails of the track? A. It looked to me like it threw him pretty nearly in the center of the track and then when it made a sudden stop why, this man that was standing up on the side, he seems to have grabbed at something and lunged off to the side of the car.

"Q. That is the other man? A. That is the other man, and went to flagging. Well, the train started up, it seems like, started up and came right on and ran over him.

"Q. Ran over the man that was thrown? A. Yes; the man that was thrown into the middle of the track."

On cross-examination he testified as follows:

"Q. Now, you said that the train stopped and then started at once; tell the jury whether or not when the train started as you say it stopped and started right off, when it started, where was this other man? A. He was out to the side waving his arms.

"Q. Waving his arms? A. Yes.

"Q. Now, had the train started when he waved his arms or not? A. No; I don't believe it had.

"Q. Do you know whether it had or not? A. Well, just the minute—the minute he hit the ground he started to waving and the train started up.

"Q. The train started all up at about that same time? You said `yes,' didn't you? A. Yes."

The evidence as to plaintiff's injury will be referred to later under the point made by appellant that the verdict was grossly excessive. Other facts will be stated in the course of the opinion.

Defendant's evidence coincided with that of plaintiff as to the movement of the cars, the location of the members of the crew, and the accident occurring while the drag of cars was being pushed across the main line tracks. Defendant's witnesses, mainly members of the crew, Flanders, the foreman, Cummings, the engineer, and Duff, a switchman who followed the engine, testified that the train was not brought to a stop. Cummings testified that, as he was crossing the main line tracks, at a speed of about four or five miles per hour, he noticed plaintiff step on the stirrup of the first car; that at this moment the car made a turn, due to a curve in the track, and plaintiff passed out of his sight. He further stated that about this time he shut off the steam of the engine and looked around to get a signal from switchman Duff as to whether he desired to ride; that Duff gave him a signal to go on. He thereupon applied the steam, and then noticed Flanders on the ground giving the emergency stop signal; that he immediately made an emergency stop and the train did not move more than half a car's length, or probably not more than ten feet, after he received the signal. Cummings stated that shutting off the steam slowed down the engine and permitted the slack to run out of the cars, but that there was no unusual jerk, but only the ordinary jerk caused by slack running out of cars when a train is brought to a stop or slowed down.

Flanders corroborated Cummings as to the movement of the train. Flanders testified plaintiff fell off the car when the slack ran out; that he (Flanders) immediately jumped to the ground and gave an emergency stop signal, and the train was brought to a quick stop. Flanders and Duff both testified the train was brought to a stop within eight or ten feet. Defendant's witnesses, as well as plaintiff's, stated that, when a train is brought to a stop, it should not be moved forward unless the engineer receives a signal from a member of the crew at the forward end of the train.

The cause was submitted to the jury upon three separate theories of liability. These are concisely stated in appellant's brief as follows: "Instruction II authorized a verdict for plaintiff if the jury should find that the engineer `caused said cars to stop or slow down with a sudden, unusual, and violent jerk.' Instruction III authorized a verdict...