Oatman v. St. Louis-Southwestern Railway Company
| Decision Date | 05 June 1924 |
| Docket Number | 24042 |
| Citation | 263 S.W. 139,304 Mo. 38 |
| Parties | JOHN OATMAN, by Next Friend, G. W. OATMAN, v. ST. LOUIS-SOUTHWESTERN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court; Hon W. S. C. Walker Judge.
Reversed.
John R. Turney, A. H. Kiskaddon and Wammack & Wellborn for appellant.
(1) Plaintiff at the time and place of his injury was a trespasser or a mere volunteer or bare licensee to whom the defendant owed no duty except to not wantonly or wilfully injure him. Hall v. Railroad, 219 Mo. 586; Chaney v. Ry. Co., 176 Mo. 603; Wencker v. Ry Co., 169 Mo. 592; Shaffer v. Ry. Co., 201 Mo.App. 116; Hunter v. Corrigan, 43 L. R. A. (N. S.) 187; Shea v. Gurney, 163 Mass. 184, 47 Am. St. 446; Marshall & East Texas Ry. Co. v. Siram, 153 S.W 404; Mickelson v. New East Tintic Ry. Co., 23 Utah 22; Wagen v. Minneapolis & St. Paul Ry., 80 Minn. 95; Goshen Furnace Co. v. Talley's Adm., 114 S. E. (Va.) 728; 20 Cyc. 1085; 4 Labatt's Master & Servant (2 Ed.) secs. 1561, 1562; Thompson on Negligence, sec. 4680; 4 Elliott on Railroads (3 Ed.) sec. 1872; 1 White on Personal Injuries on Railroads, sec. 223. (2) Plaintiff was in no sense in the employment of the defendant. There was no relation existing between plaintiff and the defendant characteristic of the relation between a servant and his employer such as selection and engagement of the servant, the payment of wages, the power of dismissal, and the control of the servant's actions. Robinson v. Baltimore & Ohio Ry. Co., 237 U.S. 93; Morgan v. Bowman, 22 Mo. 548. (3) The testimony fails to show that any agent of defendant who had authority to employ persons to work for defendant had any knowledge that plaintiff had been assisting defendant's train crew in switching or making up defendant's local freight train in the yards at Malden, even if plaintiff had been doing this. From such testimony as plaintiff offered on this point it would be a mere conjecture as to whether or not any such agents of defendant had this knowledge, and defendant's division superintendent, the only agent of the defendant with authority to employ servants, pointedly denies that he had any such knowledge. Plaintiff must bring his case out of the realm of mere conjecture. Giles v. Railroad, 169 Mo.App. 34; Orris v. Rock Island Ry. Co., 279 Mo. 30; Glick v. Ry. Co., 57 Mo.App. 97; Hall v. Railway, 219 Mo. 588. (4) Even had defendant had knowledge that plaintiff was assisting its train crew, this would not have changed the status of the plaintiff from that of a mere volunteer or a trespasser. Grissom's Adm. v. Atlanta & Birmingham Air Line Ry., 13 L. R. A. (N. S.) 564; Giles v. Railway, 169 Mo.App. 24; Mickelson v. New East Tintic Ry. Co., 23 Utah 42; Wagen v. Minneapolis & St. Paul Ry., 80 Minn. 93; R. S. 1919, sec. 3662; Barney v. Railway, 126 Mo. 372.
T. R. R. Ely and George Smith for respondent.
Plaintiff was an invitee or a licensee with an interest, and his relations were such with the defendant in this case that they bore the relation of master and servant. Etchison v. Lusk, 195 Mo.App. 185; Ryan v. Boiler Works, 68 Mo.App. 148; Schaffer v. Ry. Co., 208 S.W. 145; Atchison, Topeka & S. Fe Ry. Co. v. Fronk, 11 Am. & Eng. Ann. Cases, p. 174; Eason v. Ry. Co., 65 Tex. 557, 57 Am. Rep. 606; Moore v. Wabash, 84 Mo. 481, 487; Lowenstein v. Mo. Pac. Ry. Co. 134 Mo.App. 34.
On January 5, 1922, John Oatman, a minor, nineteen years of age, acting through his father, G. W. Oatman, as next friend, filed in the Circuit Court of Dunklin County, Missouri, an action to recover damages for personal injuries sustained by said minor 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, Missouri, 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, Arkansas, 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 brakemen 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 Malden to 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 cars 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 cars 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 ten 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, Missouri, running through the town of Malden in said State to, and beyond the town of Jonesboro, Arkansas. 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 2500 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...
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