Nelson v. Wabash R. Co.
| Decision Date | 11 March 1957 |
| Docket Number | No. 1,No. 45318,45318,1 |
| Citation | 300 S.W.2d 407 |
| Parties | Christeen NELSON, Administratrix of the Estate of Charles M. Nelson, Deceased (Plaintiff), Respondent, v. WABASH RAILROAD COMPANY, a Corporation (Defendant), Appellant |
| Court | Missouri Supreme Court |
Ely, Ely & Voorhees, Wayne Ely, St. Louis, John L. Davidson, Jr., St. Louis, of counsel, for appellant.
Hullverson, Richardson, Hullverson & Jeans, St. Louis, for respondent.
Action under Federal Employers' Liability Act, 45 U.S.C.A. Secs. 51-59, in which plaintiff had a verdict for $8,000 for her husband's conscious pain and suffering and $17,000 for loss on account of his death. Defendant has appealed from the judgment of $25,000 entered.
Defendant's only claim of error is in refusing to direct a verdict in its favor and it states two grounds for this contention. First, it says the evidence is insufficient to prove that it was negligent but instead shows that the injuries suffered by plaintiff's husband, Charles M. Nelson, resulted solely from his own negligence. Second, it says the evidence is insufficient to prove that Charles M. Nelson died as the result of his injuries.
Nelson was injured while on top of a boxcar which was pushed under the Compton Avenue Viaduct in St. Louis. The clearance was insufficient for a man standing on top of the car and he was thrown to the ground by coming in contact with the bridge. Nelson was the fireman of a switching crew which started work about 3:15 P.M. October 25, 1953. Also in the crew were the engineer, Schmazel, the foreman, Burke, the head man, Cannody and the rear man, Guinan. However, Nelson traded placed with Guinan who was tired because he had worked 16 hours and then come on this shift after 8 hours rest. Defendant contends that this exchange was a violation of Rule 703(a) providing that employees 'must not absent themselves from duty, exchange duties with other employees, substitute others in their place, nor engage in other business without proper authority.' Other rules (836) made engineers responsible for duties and instruction of firemen, requiring a report on any incompetency or negligence and (854) required a fireman while on duty to be governed by the directions of engineman and conductor. Another rule (738) provided that men 'whose duties are connected with the movement of trains, engines or cars, must familiarize themselves with the rule governing the duties of others as well as themselves, and must be prepared in case of emergency to act in any capacity to insure safety.' Defendant contends that at the time of his injury Nelson was not acting within the scope of his employment as a fireman and thus was not negaged in any duty that he owed defendant; and, therefore, defendant claims it was not guilty of actionable negligence which in whole or in part caused or contributed to cause his injuries. Defendant further contends that Nelson's injuries resulted solely from his violation of Rule 703(a).
The case was submitted on two charges of negligence. Instruction No. 4 submitted failure to have tell-tale warning devices over the track (ropes or straps hanging from an overhead cable) which would give employees notice of the low clearance bridge. Instruction No. 5 submitted failure of the engineer to stop on a signal from Cannody which the jury was required to find was given after Nelson came into a position of imminent peril of being injured by collision with the bridge and was given in time for the engineer to bring the cars to a stop before Nelson was struck. As to the first, defendant says that, for the purposes of argument in this case, it will admit negligence in not providing tell-tales. However, its position is that it had no duty to a fireman with respect to such devices because his place was in the engine cab where the could not be injured by low clearance bridges and defendant was not required to give him any warning concerning them; but because of the view we take it is not necessary to decide that question.
Plaintiff's evidence was that Nelson, Cannody and Burke, the foreman, road together on the footboard of the engine when they started to work and that Burke, as foreman, had the authority of a conductor on this occasion. (Burke was not available as a witness, having died before the trial.) Schmazel, the engineer, although he said he did not see Guinan in the fireman's seat until after the casualty and did not know Nelson was relieving him, did say that he knew that Nelson and Burke had exchanged places and work from 10 to 25 times in the last two or three months and that he had never reported this as a violation of rules. Certainly both Cannody and Burke knew where Nelson was and what he was going. (Burke stated immediately after the casualty that Nelson was acting in Guinan's place.) Therefore, if plaintiff made a case for the jury on the negligence submitted by Instruction No. 5, it is unnecessary to decide whether or not a case was made on failure to provide telltales. This is true because if plaintiff made a case under any theory submitted, then defendant's motion for a directed verdict and its motion after verdict for judgment were both properly denied. DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Homes v. McNeil, 356 Mo. 763, 203 S.W.2d 665; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. For the reasons hereinafter stated, we think plaintiff did make a case on negligence of the engineer.
Cannody said they first got cars at the Falstaff Brewery about a mile and a half from Compton Avenue and pulled them onto the main line. They went east toward the Compton Yards pushing seven cars in front of the engine which was backing, facing west, so that the engineer was on the side where he could see signals from Cannody. Nelson was on top of the head car, Cannody was on top of the car next to the engine and Burke was on the engine footboard. The train was going from five to ten miles per hour, the air was connected on all cars and engineer Schmazel said he could stop in about five feet. (There was no other evidence on stopping distance but we do not consider that this estimate includes reaction time.) Approaching the viaduct, Nelson turned and started walking west, toward the engine. Cannody thought (as did a Frisco switchman standing on the north side of the track) that he would go to the ladder on the west end of the first car and climb down to be clear of the bridge. However, he stepped over onto the second car and continued walking west. Cannody said: Cannody said the cars moved 25 or 30 feet after he started giving emergency stop signals before the engineer took his signal and at that time Nelson was no more than six or eight feet from the bridge. He said the engineer then 'took my signal and like that (snapping fingers) he stopped'; but there was at least one car east of the bridge after they stopped. The men 'off to the left' were Frisco switchmen. One of them, Mitchell, said he saw Nelson on the head car walking west, slower than the cars were moving; that when he stepped over to the other car he knew he wasn't coming down the ladder; that at that time Nelson was 50 to 75 feet from the bridge; and that he punched the man next to him, Devine, and 'both of us was hollering, and waving our arms trying--we was waving washouts, but they didn't see.' Devine said Mitchell 'began to jump up and down and wave his arms, and everything' but that he did not see Nelson himself until 'a split second before he got hit.'
Defendant contending 'that plaintiff failed to make a submissible case under any theory' says ...
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