Martin v. Railway Co.

• Decision Date: 30 July 1929
• Docket Number: No. 28060.,28060.
• Citation: 19 S.W.2d 470
• Parties: HARRY L. MARTIN v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

19 S.W.2d 470

HARRY L. MARTIN v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 28060.

Supreme Court of Missouri, Division One.

July 30, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED AND REMANDED.

E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.

(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) The breaking of the coupling between the two engines was not the proximate cause of the accident, but was merely an incident accounting for the presence of the plaintiff between the two engines at the time plaintiff's engine and train of cars rolled or moved against him and, under such circumstances, the defective coupling was not the proximate cause of the accident. Illinois State Trust Co. v. Railroad Co., 5 S.W. (2d) 368; Rittenhouse v. Railway Co., 299 Mo. 199; St. Louis & S.F. Ry. Co. v. Conarty, 238 U.S. 243; Lang v. Railroad Co., 255 U.S. 455; McCalmont v. Railroad Co., 283 Fed. 736. (b) Under the undisputed evidence the cause of the accident was the movement of the second engine and train of cars thereto attached while plaintiff was between the first and second engines for the purpose of removing the broken coupler. The cause of this movement was wholly a matter of speculation and conjecture as to whether the movement of said engine and train was due to acts or omissions of the defendant, for which defendant would be liable, or acts or omissions of plaintiff, for which defendant would not be liable, and a verdict based on such speculation and conjecture cannot be upheld. Hamilton v. Railway Co., 300 S.W. 787; Warner v. Railroad, 178 Mo. 125; Epperson v. Telegraph Co., 155 Mo. 346; McGrath v. Transit Co., 197 Mo. 97; State ex rel. v. Bland, 313 Mo. 246; Strother v. Railroad, 188 S.W. 1102; Rodgers v. Packing Co., 180 Mo. App. 227; Chicago, etc., Railway Co. v. Coogan, 271 U.S. 478; St. Louis, etc., Railway Co. v. Mills, 271 U.S. 347.

Douglass & Inman for respondent.

(1) This is an action under the Federal Employers' Liability Act and proximate cause under that act means a contributing cause, and not the efficient cause, and, as the United States Supreme Court said, to hold that proximate cause must be the efficient cause "would be emptying the statute of its meaning to say that his death did not `result in part' from the negligence of any of the employees' of the railroad." Railroad v. Hadley, 246 U.S. 333; Railroad v. Auchenbach, 16 Fed. (2d) 550, certiorari denied, 273 U.S. 761; Railroad v. Campbell, 241 U.S. 497. (2) A locomotive comes within the Safety Appliance Act which requires cars to be equipped with automatic coupler. Railroad v. Wagner, 241 U.S. 483; Pinnell v. Railroad, 231 U.S. 678; Railroad v. Crockett, 234 U.S. 725. (3) Liability to an injured employee under the Safety Appliance Act, springs from "its being made unlawful to use cars not equipped as required, and not from the position the employee may be in or the work which he may be doing at the moment when he is injured." Railroad v. Layton, 243 U.S. 617; Davis v. Wolfe, 263 U.S. 239; Railroad v. Conarty, 238 U.S. 250. (4) Where an employee goes "in between the cars for the purpose of ascertaining and remedying, if possible, the cause of the trouble," and "while between the cars, and engaged in handling the coupler" is injured, then the defective coupler is the cause of the injury, and not merely the occasion for plaintiff being between the cars. Railroad v. Lindsay, 233 U.S. 44; Railroad v. Goneau, 269 U.S. 406; Railroad v. Schendel, 267 U.S. 287; Auchenbach v. Railroad, 8 Fed. (2d) 351; Keenan v. Director General, 285 Fed. 286, certiorari denied, 261 U.S. 616; Railroad v. Auchenbach. 16 Fed. (2d) 550, certiorari denied, 273 U.S. 761; Overstreet v. Railroad, 238 Fed. 565. When plaintiff was hurt he was engaged in a coupling operation because he had to go between the ends of the cars (engines) on account of the defective coupler on his engine, which was in use and when he found he could not repair the coupler it was then necessary to remove the broken parts of the coupler from his engine so that he could move his engine, and couple it up to the train by placing it in front, and the front engine next to the train. His work was a part of this coupling operation. Railroad v. Schendel, 267 U.S. 287; Railroad v. Goneau, 269 U.S. 406. (5) An analysis of the decisions of the United States Supreme Court show five situations where causal connection exists between a defective coupler and an injury to an employee. First: Where an employee is engaged in a coupling or uncoupling movement and goes between the ends of cars on account of a defective coupler for the purpose of effecting a coupling or uncoupling and is injured on account of the cars being moved in an attempt to couple or uncouple. Railroad v. Lindsay, 233 U.S. 42; Hood v. Railroad, 302 Mo. 609. Second: Where an employee in the performance of a duty in connection with a car then in use with a defective coupler goes in to examine the coupler "to ascertain and remedy, if possible, the cause of the trouble," and is injured by the movement of other cars "and without regard to the cause of the movement," or from any cause which would not have happened but for his presence at the end of the car or between the cars due to the defective coupler. Railroad v. Schendel, 267 U.S. 287 (for facts in case see 198 N.W. 450); Railroad v. Goneau, 269 U.S. 406; Railroad v. King, 169 Fed. 372, (same case 262 U.S. 222, cited with approval 241 U.S. l.c. 39; Railroad v. Russell, 183 Fed. 722, certiorari denied, 220 U.S. 607; Clark v. Railroad, 230 Fed. 478; Johnson v. Railroad, 278 Fed. 643 (cited with approval 220 U.S. 559, note page 576); Railroad v. Voelker, 129 Fed. 522 (cited with approval in 196 U.S. 18, 241 U.S. 39); Railroad v. Tittle, 4 Fed. (2d) 818; Railroad v. Trust Co., 29 Fed. (2d) 1; Oelfke v. Railroad, 135 Atl. 659. Third: Where a car not in use with a defective coupler is standing on a track and an employee goes in to the coupler for the purpose of coupling it to another car in order to use or move it, or in order to uncouple it from another car, which other car is in use or is to be put in use, and is injured by the movement of the car in use or to be put in use, in a coupling or uncoupling movement. Hood v. Railroad, 302 Mo. 609; Railroad v. Auchenbach, 16 Fed. (2d) 550, certiorari denied, 273 U.S. 761. Fourth: Where a car with a defective coupler is in use, and the defective condition of the coupler results in a movement, or sets in motion a chain of circumstances that causes injury to an employee, and this "without regard to the position the employee may be in, or the work which he may be doing when injured." Railroad v. Layton, 243 U.S. 617; Railroad v. Gotschall, 244 U.S. 66; Railroad v. Eisenhart, 280 Fed. 270, certiorari denied, 260 U.S. 723; Keenan v. Director General, 285 Fed. 286, certiorari denied, 261 U.S. 616; Railroad v. Fessler, 295 Fed. 650; Carter v. Railroad, 307 Mo. 595. Fifth: Where a coupler on a car in use is not defective, but fails to couple or uncouple as designed and intended because of the manner or method used or employed in making the coupling or uncoupling, or because of the condition of the track, or manner in which the cars are loaded, or other conditions caused by defendant that prevent the coupler from performing its functions as designed and intended. Christy v. Railroad, 195 Mo. App. 232, certiorari denied, 246 U.S. 653; United States v. Railroad, 77 Fed. 801; Hohenlieter v. Railroad, 177 Fed. 96. (6) Where an employee is injured while between cars adjusting a coupler on a car not in use and is injured by the movement of other cars against him which is not a coupling movement, or which movement was not caused by a defective coupler, then the employee cannot recover, as there is no causal connection between the injury and the defective coupler. Illinois Trust Co. v. Railroad, 5 S.W. (2d) 368. (7) The evidence of the plaintiff, and of defendant's expert witness, and the book of instructions for operating double-heading trains is, that a front engine cannot stop a train with a service application of its air, if the cut out cock is cut in on the second engine; and, as defendant's head engineer Patrick testified that he did stop the train with a service application of the air, then this is conclusive proof that plaintiff's cut out cock was not cut in at the time of the accident. (8) The evidence of plaintiff is that he set his engine brakes when he got off the engine, and the evidence of the conductor is that in thirty seconds after plaintiff got off the engine, he looked at the gauge on plaintiff's engine and both hands were together. As the only thing that could cause these two hands to be together would be the setting of the independent (engine) brakes, according to plaintiff's testimony and the rules of the defendant, then the train brakes must have been set when Martin got off the train and when the conductor looked at the air gauge. (9) If plaintiff's engine and train could not move unless the cut out cock was cut in, and the engine brakes released, then the fact that it did move is conclusive proof that the cut out cock was cut in, and the engine brakes released at the time the engine moved. (10) If the cut out cock on plaintiff's engine was cut out and the train brakes set when he got off, and thereafter the cut out cock was cut in and the engine brakes released, then this was done by some employee of defendant, for the evidence discloses that there were no persons about these engines or train except defendant's employees in charge of the train.

RAGLAND, J.

This is an action for damages for personal injury sustained by plaintiff while employed by defendant as a locomotive engineer on one of defendant's interstate freight trains running between Amory,...