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

• Decision Date: 11 February 1924
• Docket Number: No. 23280.,23280.
• Citation: 258 S.W. 1023,302 Mo. 506
• Parties: MARTIN v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

258 S.W. 1023

302 Mo. 506

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

No. 23280.

Supreme Court of Missouri, in Banc.

February 11, 1924.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Suit by May Martin, administratrix of the estate of William H. Martin, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans, of St. Louis, John H. Lucas, and Wm. C. Lucas, both of Kansas City, G. Purd Hays, of Ozark, and W. P. Sullivan, of Billings, for appellant.

Moore, Barrett & Moore, of Ozark, and Hamlin & Hamlin and C. W. Hamlin, all of Springfield, for respondent.

SMALL, C. I.

Appeal from the circuit court of Christian county. Suit by widow for death of her husband under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Plaintiff recovered judgment for $17,000, from which defendant appealed.

The petition alleged that on September 15, 1920, the defendant was engaged in operating a railroad carrying freight and passengers to and from the states of Missouri, Oklahoma, Kansas, Texas, and Tennessee; that her husband was the fireman of a switch engine and member of a switch crew in the yards of defendant at Springfield, Mo.; that said engine and crew were used by defendant in making up trains at Springfield going to points in Tennessee, Oklahoma, Kansas, and Texas, and in distributing cars brought into such yards from those states; that on the night of September 15, 1920, while working as such fireman on a switch engine in said yards while handling interstate traffic, as he was engaged in throwing coal on the fire in said engine the said engine and cars violently collided with other cars standing on the track, and he was thrown by such collision against the iron can rack on the boiler, or against the cab, or bolt in the cab, plaintiff does not know which, but believes it was one or the other, and was injured as follows: "Was bruised near the junction of the lower lumbar region and sacrum by reason of which his spine and cord was injured sufficient to cause loss of consciousness and temporary insanity," and finally caused his death on November 20, 1920. The negligence charged is that the other members of the switching crew, the night being dark, negligently failed to be at such places on said train, where it ran on a curve, so as to enable them to communicate with each other and to signal each other and the engineer in charge of such engine of other cars or obstructions on the 'track in time to avoid colliding therewith, and the engineer knowing this fact negligently proceeded with said cars and ran said engine and said cars violently against said other cars standing on the track; that a switchman could have been placed on the cars or on the ground where he could have notified the engineer of such cars on the track in time to have prevented such collision ; that the engineer also negligently failed to keep a sharp lookout for such obstructions on the track and for signals from the switchmen. The prayer was for $50,000 damages. The answer was a general denial, assumption of risk, and contributory negligence on the part of the deceased. The reply put the affirmative defenses of the answer in issue.

Plaintiff's evidence:

Garner, the engineer, testified in substance:

That on the night of September 15, 1920, he was engineer and the decedent was fireman on a switch engine of defendant at its yards in Springfield, Mo. There were three other members of the switching crew, a foreman, and two switchmen as helpers. That night Wolf was the foreman, Kirkman was a helper, and Porter was the other man, he thought, though not certain. The foreman gave directions for the movement of the engine. The engineer stays on the right-hand side of the engine, the: fireman on the left. "We were switching freight from and to the freight house from the yard up by the roundhouse, to the freight house. Q. Where would those cars come from? A. The engine known as the transfer engine brings the cars from the north yards to the south yards. The transfer engine brings them over. The switch engine switches out what cars belong to the freight house, and puts them there. That is what we were doing. Q. Suppose the cars at the freight house were loaded for Memphis and Kansas City and Dallas, etc., what do you do with those? A. All those cars they pull out on those tracks from the freight house and switch them out on the hill toward the roundhouse. The cars that go different directions throw all of these on a track together, then this transfer engine picks them up, and takes them to the north yards. Some go one way and some another. That night about 10:30 we were pushing ten cars. The switchmen were on the head car. There was a little slight curve on the track near the Jordan, where we came into some cars. About the time we collided with them one of the switchmen came out and gave me a signal to stop. About the time we hit he came out where I could see him. I had already stopped. I stopped the engine. I set the brake. I was sitting in the cab window when we hit the cars, looking the way I was going. When the impact came I set the brake on the engine. Martin was putting in coal when we struck those cars. I saw him after the cars struck, he was making an effort to throw a shovel of coal in the fire box, and he `kinda' lost his balance and ran against the can rack with his shoulder, about there, I guess (indicating). Q. He didn't fall down or anything like that? You were paying attention to your work, not his? Watching your signals? You didn't know what had happened; the first you saw of him was when you saw him against the can rack? A. Well, yes, I asked him if he was hurt, and he said `No.' He worked on until morning, and quit about 4:30."

Cross-examination:

"Martin had been in that yard service over a year. Was well acquainted with the yards. Went over that place several times a night. (Witness identifies photograph and blueprint showing details of boiler front and cab.) Went to work at 8:30 p. m.; quit at 4:30 a. m. I didn't know he was hurt on that occasion. At the time Martin fell against a portion of the car (engine) these cars were not being operated in a different manner from the manner in which they were ordinarily or usually operated. judge we were going about 3 miles per hour— just drifting—the engine was shut off. We met a string of cars ahead of us and coupled onto them; nothing unusual to meet a string of cars in the yard at that point in switching around. Three miles an hour is pretty slow— about like a man would walk. He received no injury that I know of. I was sitting on the cab window. The [jar] of the coupling back was not severe enough to move me in my seat at all. Q. Was it severe enough for you to notice it at all? A. Well, no, I don't know it was. I would feel the shock there more than at any other place on the locomotive. The fireman never gets any signals at all under ordinary circumstances. Sometimes, the switchmen have to work on the fireman's side and have him pass the signals. That was not the case this time. The general rule is the coupling of cars is made without notice to the fireman at all. I knew there were cars down there some place. It was customary in switching cars out that cars were ahead and were to be moved from one position to another. That was this case. Always find cars down in this sag after switching out a cut of cars from the house. It is not unusual to move a car by coming in contact with it. Let it roll out onto some other track. Didn't hit these cars so very hard, I don't think—about like making a coupling. I have hit freight cars lots of times harder than those hit. Some of those couplings you have got to hit awful hard before the pin will drop. I have had them to have me come against them different times to make a coupling. I don't think Martin's head hit anything. His back did not hit anything. Nothing occurred except his shoulder hitting the pan. I made no report about the accident to the company, because there wasn't any one injured, there was no damage done to the company's property. There was nothing unusual to make a report about it."

Redirect-examination:

"I was working under the `go ahead' signal when we made the coupling. The nearest switchman to me was about the second or third car from the end of the cars."

Pat Kelly testified as an expert: That he had operated the engine on which deceased was hurt, and that the deceased, while in the act of shoveling coal, if the engine and cars collided with other cars, might be thrown so that his back would strike the can rack. Defendant duly objected to this evidence as usurping the province of the jury. A. E. Jennings testified for plaintiff;

He was a locomotive fireman, and had run engine 965, and was familiar with its make-up. He was asked substantially the same hypothetical question as the witness Kelly, to which defendant made the same objection, which the court overruled and defendant excepted. But he answered that he would probably hit his shoulder or his side on the can rack, and that, if the rate of speed was only three miles an hour, there was not anything on the cab he could have been thrown against except to strike his shoulder or his side. The impact of eight or ten cars going three miles an hour in coupling into one or more cars ahead, if the engineer should immediately apply his brakes, would be not much more than to throw a fireman off his balance.

W. P. Gustun testified:

He was yardmaster at Springfield; that all freight from all points in and out of Missouri was shipped to Springfield over the Frisco; passed through the yards at Springfield. Each switch engine is used in the yard for the purpose of handling any cars it may be necessary to handle, regardless of where they are from or their destination.

Defendant's evidence: Richards testified:

That he was brakeman on the switching crew on the 15th of September, 1920, with...