Maxwell v. Kurn

• Citation: 180 S.W.2d 249
• Decision Date: 08 May 1944
• Docket Number: No. 20321.,20321.
• Parties: MAXWELL v. KURN et al.
• Court: Court of Appeal of Missouri (US)

180 S.W.2d 249

MAXWELL v. KURN et al.

No. 20321.

Kansas City Court of Appeals. Missouri.

May 8, 1944.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

"Not to be published in State Reports."

Action by Charley E. Maxwell against J. M. Kurn and another, receivers, managers and trustees of the St. Louis San Francisco Railway Company, under the Federal Employers' Liability Act, §§ 1 to 9, 45 U.S.C.A. §§ 51 to 59, to recover for personal injuries sustained by the plaintiff. From a judgment in favor of the plaintiff, the defendants appeal.

Affirmed, and cause certified to the Supreme Court.

Milligan, Kimberly & Deacy, of Kansas City, for appellants.

Clarence C. Chilcott and T. W. Imes, both of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. There was a verdict and judgment in favor of plaintiff in the sum of $4,465.50. Defendants have appealed.

The facts show that plaintiff was injured on October 11, 1934, while employed by defendants in the unloading of coal from cars at a coal chute maintained by defendants in the town of Thayer, in this state. The coal chute was for the purpose of supplying defendants' engines with coal. The coal was unloaded from hopper-bottom cars into a pit located under the rails of a switch track, known as the coal chute switch. The hopper-bottom cars, loaded with coal, were placed over the pit and when the bottoms were opened the coal would fall into it. Thence the coal was conveyed, by an electric automatic conveyor, to the tipple or main part of the chute, from which the engines were coaled.

Plaintiff reported for work on the morning of his injury. When he reached the coal chute switch, a car, which he had partly unloaded the night before, was standing over the pit. To the north of this car there were two other cars loaded with coal. Plaintiff finished unloading the car which was over the pit. Thereafter plaintiff and one Phillips, a roundhouse foreman of defendants, started to move the empty car from over the pit and to draw the two loaded cars, which were north of the pit, toward the south so that the contents of the loaded cars could be dropped into the pit. To the south of the pit there was located an electric winch or drum for the purpose of moving cars. In operating the winch or drum a rope was attached to the end of the cars to be moved and the other end of the rope was wound around the drum. The electric current was then turned on and as the drum revolved it caused the rope to tighten and to move the car toward the south.

At the time plaintiff was injured he had attached one end of the rope or cable to the north end of the second loaded car and Phillips, who was at the drum, wrapped the south end of the rope around the drum and started to move the two loaded cars and the empty car toward the south. Plaintiff, during this operation, was standing on the east side of the track at a point about three feet north of the north end of the pit. When the first loaded car was about half way over the pit Phillips told plaintiff to "get the brakes". At this time plaintiff was standing east of the rope. When the rope was stretched in the operation of pulling the cars it was waist high. After Phillips told plaintiff to "get the brakes," the rope slackened down to about eighteen inches, and thereafter plaintiff started to board the first loaded car in order to apply the brakes. He stepped over the rope with his left foot, put it on the stirrup and caught the handhold of the car, and as he was drawing his right foot over the rope, the latter came up and tripped him, jerking his hand loose from the handhold and throwing his right foot onto the rail. The wheels of one of the cars passed over plaintiff's right foot and so injured it that it was necessary to amputate the foot and a portion of plaintiff's right leg.

Plaintiff's evidence tends to show that the coal chute held about 200 tons; that he placed from one to three cars of coal into it each day; that about 100 to 150 tons of coal per day were fed to the engines out of the chute; that the capacity of the hopper-bottom cars was from 50 to 55 tons; that it was customary to unload the oldest car first, that is, the one that had been in the yards the longest; that this was done "to avoid delay to the cars"; that the coal chute switch held six cars; that there was an average of six to eight cars waiting to be unloaded and it was the intention to keep five days' supply of coal on hand; that an average of two cars of coal were used each day for coaling the engines.

Plaintiff's witness, Magers, testified that a part of the supply of coal kept on hand in cars was in such cars standing on storage tracks 7 and 9. The evidence shows that defendants have 10 tracks in their yards at Thayer, 6, 7 and 9 being referred to in defendants' testimony as "storage" tracks.

There was other testimony that only engine coal was unloaded at the chute; that the cars were transferred to the chute at night; that as to the cars waiting to be unloaded, "they would just keep them all over the yards; all over the switches"; that you would "sometimes find them on the storage tracks; sometimes on some other tracks." There was other testimony that defendants' tracks at Thayer were "all live tracks"; that at times trains were broken up on tracks 6, 7 and 9.

Thayer is located about two miles north of the south line of this state. It is a town of 1600 or 1700 people. It is not a general supply center for defendants' railroad and only enough materials are maintained there to keep the cabooses and the engines supplied for use on trains in and out of that point. It is a division point but not a distribution center for the two divisions. By reason of the fact that defendants' road south of Thayer extends over level territory, and to the north the country is mountainous, larger trains are hauled south of Thayer than north. Consequently, trains are broken up there, and defendants maintain a switch engine at that point which is largely devoted to this work.

It was stipulated, at the trial, that all trains operated by defendants into or through Thayer by engines coaled at Thayer contain merchandise being transported between the different states of the Union. Although defendants' witnesses referred to tracks 6, 7 and 9 as storage tracks, there is no evidence of any shipment being stored there, unless it be that of coal and, in fact, there is no evidence of anything being stored there except empty cars.

Defendants' testimony tends to show that the three cars involved in the movement which took place at the time plaintiff was injured arrived in Thayer on October 2nd, 1934 from Carbon Hill, Alabama. They were shipped by defendants over their railroad. Upon their arrival in Thayer, they were placed on track 5½ and then on track 7, with other loaded cars of coal, waiting to be unloaded. They were placed on the coal chute switch on October 9th. There was testimony that these cars had been destined to "Thayer, Missouri, for engine use"; that all coal loaded from the coal chute in question was used in engines crossing the Missouri and Arkansas line, with the exception of that used in the switch engine, which engine as we have stated, was used largely in breaking up inter-state trains. One of defendants' witnesses testified that all orders for moving coal cars from the storage tracks to the coal chute track were given by the trainmaster. However, he stated that the switchman would watch the coal chute and, in case he saw that it needed coal, he would transfer the cars without any order from the trainmaster.

Defendants insist that their instruction in the nature of a demurrer to the evidence should...