Mech v. Terminal Railroad Ass'n of St. Louis

Decision Date18 May 1929
Citation18 S.W.2d 510,322 Mo. 937
PartiesJoseph Mech v. Terminal Railroad Association of St. Louis, Appellant
CourtMissouri Supreme Court

Rehearing Overruled June 7, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Franklin Miller, Judge.

Affirmed.

J. L Howell and R. E. Blodgett for appellant.

(1) The court should have directed a verdict in favor of the defendant: (a) Because the evidence shows that whatever injuries plaintiff sustained were caused by his own act in the operation of the train in violation of the rules of which he was thoroughly familiar. Toledo, St. L. & W. Railroad Co. v. Allen, 72 L.Ed. 267; Randall v. Railroad Co., 109 U.S. 482; Aerkfetz v. Humphreys, 145 U.S. 419. (b) There was no evidence showing that the particular movement in which plaintiff was engaged was an interstate movement. Ill. Cent. Railroad Co. v Behrens, 233 U.S. 473; Erie Railroad Co. v Welsh, 242 U.S. 303; Lehigh Valley Railroad Co. v. Barlow, 244 U.S. 183; N. Y. Cent. & H. R. Railroad Co. v. Carr, 238 U.S. 260; C.B. & Q. Railroad Co. v. Harrington, 241 U.S. 177. (2) Instruction 1, given at the request of plaintiff and as modified by the court, is erroneous in that it allowed a recovery for a violation of rules of respondent, whereas such violation was knowingly made by respondent. (3) The verdict is not responsive to the evidence in the case introduced both by respondent and appellant. Charles P. Noell and Hensley, Allen & Marsalek for respondent.

(1) There was ample evidence of negligence on defendant's part. (a) The evidence in plaintiff's behalf supports the jury's finding that the collision was caused by the tower man's failure to change the signal light on bridge 17, controlling track 52, from green to red, when train 96 passed into the block east of this bridge, and in continuing to display a green or "clear" signal while said train 96 was standing upon the track in the block. Said conduct of defendant's tower man constituted a violation of defendant's printed rules, as well as of the customary practice in the yard, and was an act of negligence, rendering defendant liable to plaintiff for the collision and the injuries resulting therefrom. Halt v. Railroad (Mo.), 279 S.W. 148, 271 U.S. 668; DeClue v. Railroad (Mo.), 264 S.W. 992; Hill v. Railroad, 182 Mo.App. 389; McGovern v. Ry. Co., 235 U.S. 389; Railroad Co. v. Jeffries, 276 F. 73; Pacheco v. Railroad Co., 15 F.2d 467; Dir. Gen. v. Templin, 268 F. 483; Railroad Co. v. Bartley, 172 F. 82; Hines v. Knehr, 266 F. 340. (b) Defendant's evidence, to the effect that at the time of the accident, and for a long time theretofore, its signal men customarily violated its rules, by displaying green or "clear" signal on bridge 17, over track 52, regardless of whether the block east of the bridge was occupied by a train, and that train movements in the yard were conducted on the theory that the rules would be thus customarily violated and disregarded by the tower men, cannot be considered in this connection. The unquestioned rule is that defendant's evidence, so far as it tends to contradict the testimony in favor of plaintiff, serves no office, and must be disregarded, in ruling upon the demurrer to the evidence. Hall v. Coal & Coke Co., 260 Mo. 351; Nicholson v. Railroad (Mo. App.), 297 S.W. 997; Reid v. Ins. Co., 58 Mo. 429. It was the jury's function to pass on the credibility of the witnesses. Buesching v. Gas. Co., 73 Mo. 219; Friedman v. Rys. Co., 293 Mo. 235; Franke v. City, 110 Mo. 516. (c) Neither would the court have been justified in sustaining the demurrer on the theory that plaintiff violated rules 101, 105 and 109. The testimony of plaintiff shows that he fully complied with these rules and exercised ordinary care on his part. His train was running at the usual rate of speed. He was in his proper place. He had the braking apparatus in his hand, ready to act. He kept a careful watch in the direction the train was going; he discovered the standing train as soon as he could, in view of the existing conditions, and immediately applied the brake. Whether he was at fault was, at the very most, a jury question. Kinney v. Railroad, 261 Mo. 97; Hollenbeck v. Railroad, 141 Mo. 97; Yost v. Railroad, 245 Mo. 219. (d) While there is nothing in plaintiff's case tending to show that he was guilty of negligence contributing to bring about the collision, yet, if the fact were otherwise, it would not defeat his action, but merely diminish his damages, because the tower man's negligence plainly contributed with plaintiff's (if any) to cause the collision. Federal Employers' Liability Act, 45 U.S.C. A., sec. 53; Norfolk, etc., Railroad Co. v. Earnest, 229 U.S. 114; Grand Trunk, etc., Railroad Co. v. Lindsay, 233 U.S. 42, 201 F. 836; Auchenbach v. Ry. Co., 8 F.2d 350; So. Railway Co. v. Mays, 239 F. 46; N. Y. C. & St. L. Railroad Co. v. Niebel, 214 F. 952; Ill. Cent. Railroad Co. v. Skaggs, 240 U.S. 66; Davis v. Dowling, 284 F. 670. (e) The negligent omission of measures which would have prevented the result is recognized by the law as a proximate cause upon which liability may be predicated. Ward v. Dry Goods Co., 248 Mo. 370; Hayes v. Railroad, 111 U.S. 228. (2) The evidence shows without dispute that plaintiff and defendant were engaged in interstate commerce at the time of plaintiff's injury. (a) The movement of the cars in which plaintiff was injured was not a separate and distinct trip ending at Union Station in St. Louis. The destination of these cars, Springfield and Chicago, Illinois, respectively, was determined before they left the Atlantic Street yards. The movement to Union Station was merely a detail of the larger and dominant purpose in view, the transportation of the cars to their Illinois destinations. Their transportation to the station was a necessary part of, and was directly connected with, this interstate trip. LaLone v. Term. Ry. Co., 316 Mo. 835; Railroad Co. v. Seale, 229 U.S. 156; Railroad Co. v. Zachary, 232 U.S. 248; Railroad Co. v. Carr, 238 U.S. 260; Shanks v. Railroad Co., 239 U.S. 556; So. Ry. Co. v. Puckett, 244 U.S. 573; Geer v. Railroad, 109 Tex. 36; Dir. Gen. v. Bennett, 268 F. 767; So. Railroad Co. v. Jacobs, 116 Va. 189, 241 U.S. 229; O'Donnell v. Dir. Gen., 273 Pa. 375; O'Brien v. Railroad, 231 N.Y. 511; Hester v. Railroad, 254 F. 787; Cott v. Railroad, 231 N.Y. 67, 257 U.S. 636. (b) Evidence of the switching and movement of cars, pursuant to a daily routine, to the end that they may be presently moved forward in interstate commerce, is ample to take to the jury the question whether those employed in such operations are engaged in interstate commerce. Christ v. Wabash, 195 Mo.App. 236; Aldread v. Railroad, 93 Wash 210; Breske v. Railroad Co., 115 Minn. 386; Mulstay v. Ry. Co., 195 Iowa 514; Railroad Co. v. Morrison, 3 F.2d 986; White v. Jackson, 221 Ill.App. 129; Jeneary v. Traction Co., 306 Ill. 392; Railway Co. v. Indus. Bd., 277 Ill. 515.

Lindsay, C. Seddon and Ellison CC., concur.

OPINION
LINDSAY

This is an action for damages for personal injuries suffered by the plaintiff while in the employ of defendant. The suit was brought under the Federal Employers' Liability Act. At the time of his injury the plaintiff was foreman of a switch crew of defendant, and engaged in moving seven passenger coaches propelled by an engine, from the yards of defendant at Atlantic Street in the city of St. Louis, to their respective appropriate places on tracks in Union Station, in said city. Certain of the cars being so moved were the property of the Illinois Central Railroad Company, and the remainder were the property of the Chicago & Eastern Illinois Railroad Company. The purpose was to set the coaches of the Chicago & Eastern Illinois Company on track 25, and the others on track 28, in Union Station. These cars when so assembled there, would become parts of regular trains of the respective railroad companies running out of Union Station to their destinations, which were respectively Chicago, Illinois, and Springfield, Illinois. From the Atlantic Street yards the train of seven cars was being pushed eastward. The plaintiff, as foreman, stood on the platform of the car at the east, or advancing end of the train. He had in his hand the "tail hose," an appliance connected with the air line and air brakes of the cars composing the train, which could be used to operate the brakes and control the speed of the train, or stop it. These cars at the time in question were moving on the track designated as track No. 52, toward Union Station. Within Union Station there were thirty-two tracks on which passenger trains were assembled for outgoing movements. Over track 52 defendant maintained a system of block signals. These signals were located on bridges over the tracks, referred to as signal bridges. They were operated and controlled by an employee of defendant from a tower located near the track. The various signals for service in the nighttime, were given by showing a yellow, green or red light, over the signal bridge. A green light was used to indicate a clear track. The rules of defendant defining the meaning and use of these signals were introduced in evidence, and will be noticed hereafter. The signal bridges from which these lights were shown, were numbered. Over track 52 were located signal bridges numbered 17 and 9. The distance between them constituted a block for signalling purposes. A train moving on track 52 toward Union Station, as was the train on which the plaintiff was located, would pass under signal bridge 17, moving toward signal bridge 9. Passing signal bridge 17 toward the Union Station track 52 curves somewhat northward. On the occasion in question the signal over bridge 17 showed a green light, but at a short distance beyond the curve in the track, track...

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