Oatman v. Loins Southwestern

• Decision Date: 05 June 1924
• Docket Number: No. 24042.,24042.
• Citation: 263 S.W. 139,304 Mo. 38
• Parties: OATMAN v. LOINS SOUTHWESTERN RY. CO.
• Court: Missouri Supreme Court

263 S.W. 139

304 Mo. 38

OATMAN v. LOINS SOUTHWESTERN RY. CO.

No. 24042.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by John Oatman, a minor, by his next friend, G. W. Oatman, against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

John R. Turney and A. H. Kiskaddon, both of St. Louis, and Wammack & Welborn, of Bloomfield, for appellant.

T. R. R. Ely and George Smith, both of Kennett, for respondent.

Statement.

RAILEY, C.

On January 5, 1922, John Oatman, a minor, 19 years of age, acting through his father, G. W. Oatman, as next friend, filed in the circuit court of Dunklin county, Mo., an action to recover damages for personal injuries sustained by said mines through the alleged negligence of defendant. The case was tried upon an amended petition, which alleges, in substance, that defendant, a Missouri corporation, owned and operated a line of railroad running from St Louis, Mo., to and through the city of Malden, in said county, and extending into the state of Arkansas; that several switches were connected with its main line of railway in said city of Malden over which freight and passenger trains were operated for hire; that on November 8, 1921, and prior thereto plaintiff was invited and licensed by the servants and employees of defendant's local freight train and the switchyards in said city of Malden to assist said servants and employees in operating said train, and doing switching in said yard, and, as such licensee and invitee, was at the above-mentioned time under the control of defendant, its servants and employees, and at the time of his injury was carrying out the orders of said defendant and its servants; that the local freight train engaged in said switching was numbered 57, and was operated from Malden to Jonesboro, Ark., upon every other day; that plaintiff, for a period of about two months before his injury, had been invited and licensed by defendant aforesaid in making up said train and carrying out the orders of defendant and said servants; that the division superintendent, the local station agent, the conductor, fireman, and brakeman on said freight train No. 57, during all of said two months preceding plaintiff's injury, knew that plaintiff was assisting in switching and making up said local freight train every other morning in said city of Malden; that on November 8, 1921, said train was operated by the same crew which had been operating it for two months prior to said date; that on said November 8, 1921, while plaintiff was engaged with said crew in making up local freight train No. 57, which was to run on said date from Maldenoto Jonesboro aforesaid, he was directed by defendant's servants and employees to uncouple a certain box car attached to said train in Malden, being the fifth and last car from the engine, which said car was being pushed from the west and from the main track onto a switch track designated by said servants and employees, who directed plaintiff to uncouple said car while said train was in motion, so that the car which was to be uncoupled might be kicked onto one of defendant's side tracks; that said car which was to be uncoupled was a bad order car which had a penalty defect, on account of the absence of a chain lifter, which is necessary to operate the coupler Lock with safety; that the defective condition of said car was known to defendant and its servants, or by the use of ordinary care they could have known its condition; that said car had been operated in plain violation of the interstate commerce laws regulating the operation of such cars; that in order to uncouple said car it was necessary for plaintiff to climb upon the ladder attached to the end of the car immediately in front of the car to be uncoupled and kicked in on the side track, and to hold said ladder with one hand and pull the pin that uncouples the car with the other; that while standing upon and holding the ladder on the end of the car aforesaid, and while in the exercise of due care on his part in performing said duty, the servants and employees of defendant carelessly and negligently, while said ears were being moved at a great rate of speed, applied to the brakes of said train such great force of air as to cause said train to stop suddenly and with such unusual, unnecessary, and terrific force and so quickly as to break plaintiff's hold on the ladder and throw him from said box car onto the iron railing and track over which cars were being run and immediately in front of the car upon which he had been standing and holding; that he fell between said cans and his right foot became wedged between the iron rails of the passing track, which said passing track runs parallel with the main track for a long distance and the iron rails of the switch track at a point about 10 feet from the switch point, connecting the switch track and said passing track; that at the point where plaintiff's right foot was caught there was `nothing between said rails to prevent his foot from being caught therein; that plaintiff was unable to extricate himself and, while in that position, the wheels of the train passed over the feet of plaintiff and both legs were cut off below the knees after describing plaintiff's injuries, etc., the amended petition further alleges that, by reason of the carelessness and negligence of defendant and its servants in furnishing him a defective car, in throwing him off said car by said sudden, unusual, unnecessary, and terrific jerk that broke his hold as aforesaid, and in permitting said switch to remain unblocked as aforesaid, he was rendered a cripple for life, and asked for damages, on account of his injuries, in the sum of $50,000. Defendant, in its answer to said amended petition, admitted its incorporation and ownership of said road. It denied every other allegation contained in said petition.

It appears from the evidence that on and prior to November 8, 1921, the defendant owned and operated a line of railroad from St. Louis, Mo., running through the town of Maiden, in said state, to and beyond the town of Jonesboro, Ark. The defendant's road is commonly called the "Cotton Belt." Its tracks at Malden are crossed by the tracks of the St. Louis & San Francisco Railroad, often called the "Frisco." Malden is a city of about 2,500 inhabitants, and defendant's road runs through the same in a southwesterly and northeasterly direction. The defendant maintained at Malden a main track, a passing track, two switch tracks, and a melon track. The passing track was parallel with the main track. Switch track No. 2, as designated on the plat offered in evidence, was on the south side and next to the passing track. Switch track No. 1 was still further south and next to track No. 2, while the melon track was south of track No. 1.

On the 8th of November, 1921, and long prior thereto, the defendant had been operating a local freight train, which was made up at Malden and ran every other day from the latter place to Jonesboro, Ark., and return. The local freight train was operated with a full crew of employees, composed of an engineer, fireman, conductor, and three brakemen. It was so operated on November 8, 1921, and for a long time prior thereto. O. R. Deitrich was the conductor, and E. A. Rogers, J. A. McHaney, and W. M. Innes were the regular brakemen operating said train on and prior to November 8, 1921. The local train above mentioned was called No. 57, and described by the witnesses in this way. The larger portion of Malden, including the business section, lies' north of the defendant's tracks, although there are quite a number of residences on the south side of said track, including the village of Spoonervine, which adjoined Malden, and where the plaintiff lived. On the west edge of Malden the tracks of the Frisco, running north and south, cross defendant's tracks at right angles. The defendant's tracks extend up into the north yards; it is about 90 yards from the Frisco crossing to the first switch connecting the passing track and main track. It was about 70 yards from the switch connecting the main and passing track to the switch at which plaintiff was hurt; it being the switch leading to the three south side tracks. The coal chute was about 600 feet from where plaintiff was hurt. Defendant's depot is still farther northeast.

About 8 o'clock on the morning of November 8, 1921, the conductor testified that the bad order car was in the yard at Malden, and that on account of its defective condition he had it put on the repair track, so it could be (repaired. This car was being placed on the track for repairs at the time plaintiff was injured.

George Oatman, the next friend and father of plaintiff, testified that he lived at Malden and had been car repairer for defendant for 12 or 13 years; that the bad order car had a broken pin chain, which was a penalty defect; that it should have been placed in the rip track for repair; that when this car was on the main line it should have been kicked onto the bad order track, which was about 200 feet from where the accident occurred.

Plaintiff testified that in 1918 he worked for the defendant from 5 o'clock at night until 2 o'clock in the morning, wiping engines and putting oil in them; that this was his regular job; that he performed the same service in 1919; that he went to doing emergency firing on the 3d of March, 1920; that is, he took some man's place if the latter was sick. He testified:

"I kept the job, wiping engines and emergency fireman, until March, 1921; then I was discharged;" that he quit work for defendant March 16, 1921.

Plaintiff further testified as follows:

"I didn't stand around the yards watching the trainmen. I helped the boys what time I was around there. They never asked me to help them, just come plain out, only they give me signals; they never did talk to us.

"Q. You just...