McManus v. Oregon Short Line R. Co.

• Decision Date: 10 April 1906
• Citation: 94 S.W. 743,118 Mo. App. 152
• Parties: McMANUS et al. v. OREGON SHORT LINE R. CO.
• Court: Missouri Court of Appeals

94 S.W. 743

118 Mo. App. 152

McMANUS et al. v. OREGON SHORT LINE R. CO.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

Rehearing Denied April 24, 1906.

1. EVIDENCE—PRESUMPTIONS—COMMON LAW.

As the state of Idaho is a part of territory which was never subject to the laws of England, it cannot be presumed that the common law is in force in that state.

2. SAME.

In a suit on a cause of action arising in a state in which the common law is not presumed to be in force, and in which there is no evidence as to what the law of the other state is, the matters in issue must be determined according to the laws of this state.

3. MASTER AND SERVANT—SAFE PLACE TO WORK—FAILURE TO BLOCK SWITCHES— NEGLIGENCE—QUESTION FOR JURY.

In an action against a railroad company for the death of a brakeman alleged to have been killed because of defendant's failure to block its switches, evidence held to require submission to the jury of the question whether defendant's failure to provide blocks was negligence.

4. TRIAL—DIRECTION OF VERDICT.

Where there is any substantial evidence, though slight, whether direct or inferential, tending to establish matters in issue, the issue must be submitted to the jury.

5. MASTER AND SERVANT—INJURIES TO SERVANT —CONTRIBUTORY NEGLIGENCE.

Where cars were provided with a lever by which they could be uncoupled without going between them, it was contributory negligence

for a brakeman to go between the cars for the purpose of uncoupling them.

6. SAME—QUESTIONS FOR JURY.

In an action against a railroad company for the death of a brakeman, evidence held that the submission to the jury of whether the deceased went between the cars for the purpose of uncoupling them, or to detach the air hose, was proper.

7. SAME—ASSUMPTION OF RISK.

A railroad brakeman did not assume the risk of going between cars while switching, if it was necessary for him to do so in the performance of any duty he owed his employer.

8. SAME — CONTRIBUTORY NEGLIGENCE — OBVIOUS DANGER—ABSENCE OF BLOCKS IN SWITCH FROGS.

Absence of blocking in the frogs of switches is not an obvious danger, so as to render a brakeman going on the tracks between cars, in the process of switching, guilty of contributory negligence.

9. ABATEMENT AND REVIVAL—DEATH OF CO-PLAINTIFF.

Under Rev. St. 1899, §§ 858, 859, providing that, if all the appellees, or a sole appellee, die, the executors or administrators may be compelled to become parties etc., the death of a coplaintiff pending an appeal by defendant does not abate the suit.

10. COMMERCE—FEDERAL REGULATION — PERSONAL INJURIES.

In an action in one state against a railroad company for negligence alleged to have caused the death of a servant in another state, the act of Congress regulating interstate commerce has no application.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Adda McManus and others against the Oregon Short Line Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Adda McManus is the widow of John McManus. John Kelly McManus was their only child. On December 11, 1902, while in the employ of the defendant as brakeman and switchman at Nampa, in the state of Idaho, John McManus was run over and killed by one of defendant's cars. Adda McManus, in her own right, and John Kelly McManus, by and through his mother, duly appointed his next friend, both being residents of this state, brought this suit to recover damages caused by the alleged negligent killing of John McManus. The specific allegation of negligence is as follows: "That on or about the 11th day of December, 1902, John McManus, deceased, husband of the said Adda McManus and father of her minor child, an employé of the above-mentioned defendant, while in the performance of his duty, that of coupling cars on the Falk track in the above-mentioned switching yard of defendant, was run over and killed by a train of cars belonging to and operated by said defendant. That the said running over and killing of said John McManus was directly and proximately caused by the fact that one of his feet was caught and held between the guard rail and a track rail which the defendant negligently placed and maintained on its side track opposite an off-shoot from said side track, which off-shoot was a private switch running to an oil tank, and which said guard rail and track rail so situated were negligently placed and maintained by defendant without any blocking or filling in between said rails, and so negligently and closely laid to each other, that a man's foot when once caught between them could not be released from their clasp in time to save himself from being run over by the train of cars doing switching work over that portion of defendant's roadbed, as one of its trains was then doing." Under the laws of the state of Idaho, specially pleaded and offered in evidence by the plaintiffs, Adda, as the widow, and John Kelly, as the child of John McManus, are entitled to share equally in his estate; and a right of action to recover damages caused by the death of said John McManus is given to them against the defendant, if he came to his death "by the wrongful act or negligence of the defendant."

Plaintiff's evidence shows that for five or six months prior to his death, John McManus had been in the employ of the defendant railroad company as a brakeman and switchman in its yards at Nampa; that on December 11, 1902, a local train arrived at Nampa between 9 and 10 o'clock a. m.; that seven cars were being pushed by the engine on or over a switch track known as the "Falk track," and deceased got down off of one of these cars and stepped in between it and another car for the purpose of uncoupling the cars or separating the air-brake hose. Just as he stepped between the cars, the train was started up, to use the language of one of the witnesses, "in a kind of a rush." Deceased fell, and the front trucks of one of the cars ran over him. He fell near the apex of the track rail and the guard rail, and, when found, his right foot and leg were so tightly pressed down between the two rails that the spikes had to be withdrawn from the guard rail and the rail pushed back with a crowbar before his foot and leg could be extricated, both of which were badly crushed and his right side, from his hip to his shoulder, was split or cut open. There was no blocking between the guard and track rail, and plaintiff's evidence tends to show that blocking was a safety appliance commonly used on railroads, and served to prevent a switchman's foot from becoming wedged in between the two rails when stepping in between cars at such points; that where this blocking was used the foot could not go down between the rails and become fastened, and, where there was no blocking, the foot would go down between the rails and become wedged between them. The evidence is that the air-brake hose should be detached before the cars are uncoupled.

On the part of the defendant, the evidence tends to show that the cars beween which plaintiff stepped were equipped with automatic brakes in good working order; that they were worked by levers extending to the outer edge of the cars, and it was not necessary to go between them to uncouple the cars, as they could be uncoupled from the outside by using the levers. Defendant's evidence also shows that it had a book of rules for the guidance of its employés; that the deceased had a copy of this book in his possession, which was put in his hands when he entered the service of the company, and when he was employed he signed a written agreement to keep and observe these rules. Rule No. 742 reads as follows: "Employés must not go between cars in motion to couple or uncouple them, or to follow other dangerous practices. Under no circumstances must they stand on the track and attempt to get on cars or engines approaching them." Defendant's evidence also tends to show that the use of frog blocks are impracticable on its road. The road is built through a mountainous country, where sandstorms prevail on the eastern end, and heavy snowstorms on the western end, and defendant is compelled to use steel brooms to clear its switches. If blocking was used, the brooms could not take out the sand and snow that would pack in between the block and the rail which would...