Noel v. Quincy, O. & K. C. R. Co.

• Decision Date: 07 December 1914
• Docket Number: No. 11054.,11054.
• Parties: NOEL v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Court of Appeals

182 S.W. 787

NOEL v. QUINCY, O. & K. C. R. CO.

No. 11054.

Kansas City Court of Appeals. Missouri.

December 7, 1914.

Rehearing Denied January 11, 1915.^†

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by Shelby P. Noel against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. G. Trimble and Willard P. Hall, both of Kansas City, for appellant. Stivers & Morris and Bruce Barnett, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was an employé of the defendant railway as a brakeman, and while engaged in that service in this state had his left hand so severely crushed between cars that it was necessary afterwards to amputate it. He recovered judgment in the circuit court.

Plaintiff's service on the train was between two points in Missouri, but the train ran between Quincy, Ill., on the east bank of the Mississippi river, to Kansas City, on the western border of the former state, and when plaintiff was injured there were cars in the train loaded with stoves from Quincy and with whisky from Peoria, Ill. In these circumstances plaintiff was engaged in interstate commerce. McAdow v. K. C. Western Ry. Co., 164 S. W. 188; Moliter v. Wabash Ry. Co., 180 Mo. App. 84, 168 S. W. 250; Southern Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Pedersen v. Railway Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; N. Carolina Ry. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. And his petition is framed under the Employers' Liability Act of Congress (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]). The charge is that the automatic coupling between a car in the train and the tender to the engine which plaintiff was endeavoring to couple was in such condition that the coupling would not "make" from impact. The charge in the petition is in these words:

"That on and prior to the 15th day of September, 1911, there was attached to one of defendant's locomotive engines, in use, the number of which is to plaintiff unknown, on said line of railroad, a certain drawbar, to the end of which drawbar was attached a certain coupler, used for the purpose of being joined or coupled to a like or similar coupler upon any car in use on said railroad to which the defendant might have occasion to attach or couple said engine, and that on and prior to said date said drawbar on said engine was in a bad, defective, and worn condition, and unsafe and dangerous to the life and limb of any freight brakeman engaged in the work of coupling any car to said engine with or by means of said drawbar and said coupler thereto attached in this: That said drawbar extended through an opening or hole in a certain beam which constituted a part of said engine, to wit, the beam upon the rear end of the tender of said engine, and on and prior to said date the said hole or opening through which said drawbar extended, as aforesaid, had by long wear and use become so enlarged, and said drawbar had become so worn, that it was caused to and did move from side to side, and was not, nor would it remain, steady or secure in its place, and that accordingly, and as a result of said worn condition of said hole and opening, as well as of the worn condition of said drawbar, and of its being insecure and unsteady in its place, and of its moving from side to side as aforesaid, the said coupler on the end of said drawbar would not strike evenly and squarely into the knuckle upon the coupler upon any car to which said engine was being attached or coupled, and would not, therefore, couple automatically by impact. That said conditions were unsafe and dangerous to any freight brakeman engaged in the work of coupling or attaching said engine to any car in this: That because thereof it became and was necessary for such brakeman to move and adjust, with his hands, the coupler upon any such car being attached to said engine in order to bring the knuckle of such coupler in line with the coupler on the end of said drawbar, so that the same might be coupled or attached by impact."

No one saw plaintiff at the moment he was injured. His description of the way it happened was told substantially as follows:

"It had been raining, and after having done some switching at Plattsburg it became necessary to couple the engine to the cars on the main line, and he threw the switch so as to let the engine onto the main line. That the engine went against the head of the train to couple with it, but did not make the coupling. That when he arrived at the train he found both knuckles closed. That the engine slacked ahead three or four feet on his signal, and he opened the knuckle on the car, and gave the signal to back up. That this was done, and again the coupling would not make. He then observed that the coupler of the engine was out of line; that it had slewed something like four or five inches. That again the engine slacked ahead on his signal, and again he opened the knuckle of the car, and took his left hand and put it against the drawhead of the car, which was then wet from the rain, to shove it over in line with the coupler of the engine, so as to make the coupling. That one of his feet was on the wet rail. That while he was pushing against the coupler of the car he gave the signal to back the engine, which was only three or four feet away. That he was holding onto nothing with his right hand to steady him, but was trying to push the drawhead over, and his foot on the rail slipped as the engine backed up, and that his left hand went down as the cars came together, and was caught between the couplers and was crushed." He had "opened the knuckles, but the coupling wouldn't make. The drawbar crossed by the other one...