Ostertag v. Union Pac. R. Co.

• Decision Date: 14 July 1914
• Docket Number: No. 16725.,16725.
• Parties: OSTERTAG v. UNION PAC. R. CO.
• Court: Missouri Supreme Court

169 S.W. 1

261 Mo. 457

OSTERTAG v. UNION PAC. R. CO.

No. 16725.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

Rehearing Denied July 25, 1914.

1. MASTER AND SERVANT (§§ 286, 289)—INJURIES TO SERVANT—ACTIONS—JURY QUESTION.

In an action by a member of a switching crew run down by a switch engine, behind which he stepped while it was standing on a switch track to allow a train to pass, the questions of the negligence of defendant and contributory negligence of the switchman, held, under the evidence, for the jury.

2. APPEAL AND ERROR (§ 1064)—REVIEW— HARMLESS ERROR.

In an action for injuries to a switchman run down by a switch engine behind which he attempted to pass, the erroneous admission of evidence of a rule of the railroad company, requiring two short whistles in answer to any signal not otherwise provided for, is harmless, where the instructions did not submit to the jury any fact involving that rule.

3. TRIAL (§ 121)—ARGUMENT OF COUNSEL.

In a personal injury action by a railroad employé, who signed a statement prepared by a claim agent immediately upon his return to consciousness after the amputation of his leg, remarks by his counsel comparing the claim agent to a ghoul are not improper.

4. TRIAL (§ 133)—ARGUMENT OF COUNSEL— IMPROPRIETY.

That the court denied the request of defendant's counsel to discharge the jury for improper argument by plaintiff's counsel does not warrant reversal, where objections thereto were sustained and on one case the jury were instructed to disregard the argument; it not appearing that defendant's counsel requested the court to reprimand the counsel for plaintiff.

5. APPEAL AND ERROR (§ 1004)—REVIEW— EXCESSIVENESS OF DAMAGE.

Improper argument of counsel for plaintiff in a personal injury action will be considered in determining the question of excessive damages.

6. DAMAGES (§ 132)—PERSONAL INJURIES— AMOUNT.

An award of $15,000 damages in favor of a railroad switchman 34 years of age, in good health, and earning $100 a month, who suffered injury requiring the amputation of one leg nearly up to the hip and sustained other slight injuries, is excessive by $5,000.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Louis H. Ostertag against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter remittitur; otherwise reversed and remanded.

This is a suit for damages for personal injuries. The plaintiff recovered a verdict and judgment for $15,000. He was 34 years old at the time of the injury, and in good health. He had been in the employ of defendant as a switchman about 4 years, and had been in railroad work longer. The injury occurred in defendant's freightyards in Kansas City, June 7, 1910, about 6:40 p. m. Plaintiff was one of the crew of engine No. 1241. The petition alleges the negligence as follows:

"That while such switch engine was stationary and plaintiff was engaged in the act of passing around the end of the same, and in a position of peril from the movement of said engine backward, the said switch engine, in consequence of and through the negligence and mismanagement of the agents, engineers, and other employés of the defendant, including the foreman of said switching crew, was suddenly, swiftly, and violently moved backward, toward, and against the plaintiff; and said agents, engineers, and other employés, including the foreman of said switching crew, negligently failed to give any warning to the plaintiff, as due case required them to do, of such movement of such engine."

It alleges the loss of his left leg about halfway between the knee and hip, and that he was earning $100 a month, and prays for $25,000 damages. The answer contained a general denial, a plea of contributory negligence, and an allegation that under the law of Kansas the plaintiff assumed the risk. The reply is a general denial.

Tracks 4 and 5 in the defendant's yards, running parallel from east to west, are connected at the west by a switch, from which the track continues west. On the south side of the track, and 200 or 300 feet west of that switch was the "shanty" or office, where the defendant's employés went to get and give orders and reports. Freight train 157, containing about 50 cars, was on track 4. The road engine was coupled to the west end of that train, and headed west. In front of the road engine was coupled the helper engine reversed, i. e., with its head to the east. It was there for the purpose of helping the train start westward on an upgrade. South of that train was engine 1241 on track 5. It was coupled to its tank or tender, but not to any cars. The plaintiff was in the cab of his engine at the time it arrived near the switch. The foreman of that engine, Mr. Moore, had come with the engine from the east, riding on the footboard on the rear end of the tank, which was in advance as the engine backed west. On reaching that spot, the foreman left the engine and went to the shanty to report to the yardmaster, Shull, and to receive additional orders if there were any. It was quitting time for that engine and crew, and, in the absence of further orders, the engine was to be taken westward beyond the shanty to the roundhouse, and the crew were to disperse to their homes. As Moore reached the shanty, he met and passed Detwiler, conductor of the freight, who was going towards his train. About that time, 157 "whistled off," i. e., signaled that it was ready to go. Engine 1241 was too near the switch to permit the freight to pass safely. It headed east so that the freight could pass, and stopped with the west end of its tank one or two car lengths east of the clearing point of tracks 4 and 5. The west end of the helper engine in front of the freight train was about the same distance east of the clearing point. Detwiler, the freight conductor, signaled his train to "come ahead," and it started. About that time the plaintiff, having left the cab of his engine about the time it last stopped, passed west between tracks 4 and 5 on his way to the shanty, and Moore, the foreman of 1241, with the permission of Shull, the night yardmaster, signaled his engine to "back up," which meant to come on west over the switch ahead of 157. The engine started quickly, and the rear end of the tank, which was for the time in front, struck plaintiff within 5 or 10 feet after starting. The plaintiff had stepped on track 5 on his way to the shanty.

Melvin H. Milam, fireman on the "helper" engine, witness for plaintiff, testified as follows:

"Q. Suppose you tell us in your own way what happened there that night with reference to the switches and the engines on 157 and this engine 1241. A. Well, 157 was made up on track 4. 1241 had made a Frisco transfer and backed out the stock track and onto 5, and come up about even with the switch engine on the head end of 57. They stood there quite a little bit (I don't know how long) and the conductor—we got the switch anyway, and the conductor gave us a highball. When they pulled up there they pulled up too far, and they had to back down again to get in the clear. Q. That is 1241? A. 1241. Then they gave us the switch, and the conductor gave us a highball, and we whistled off and started up. Just as we started somebody gave a sign for 1241 to back up towards the west and beat us to the switch. Then is when Ostertag got hit. Q. How far did you say that 1241 moved when it headed east to clear 4? A. The length of the engine. Q. You say you got the switch. Did your train whistle for the switch to get it? A. No. They gave us the switch, and we whistled off. Q. Where was 1241 at the time you started? A. They were about even with the switch engine of 57. Q. That is, with your engine? A. Yes, sir. Q. How long was it after you started before 1241 started west? A. Well, I could not say. Q. As your engine stood there alongside of 1241, how far was your tank, the end of your tank, from the clearing point between tracks 4 and 5? A. Well, if I remember right about the length of the engine. Probably a few feet further. Q. How far would you say you moved with the helper engine from the time you started to the west until you stopped? A. 10 or 12 feet, something like that, maybe not that far. All I remember is we got started, whistled off and got started."

Plaintiff took the deposition of W. H. Wildermood, engineer of engine 1241, and the defendant read it in evidence. He testified:

"Q. Mr. Wildermood, suppose you tell us in your own way what occurred there in the operation of that engine from the time you first backed west toward the switch shanty the evening Ostertag was hurt. A. Well, we backed up on what we call No. 5 and engine 1151, night engine, was switching on the hill, and we couldn't get out, so I stopped where I supposed it would clear 4. Well, night engine 1151 shoved in the clear. Q. That was onto track 3? A. That was on track 4. We were on track 5. No. 157, that is a train of local merchandise, going west, whistled off. Fireman says to me, he says, `Go ahead a little in the clear.' I says, `I am in the clear,' and he says, `Well, you don't clear good,' and Lou Ostertag dropped off the engine and says, `Yes, give them a good clear.' So I let engine 1241 slack ahead in the clear about 30 or 40 feet. I will say that much, but I don't know whether that far, and maybe a little farther. After I stopped the fireman says, `Back up.' I says, `What?' The fireman says, `Moore says back up,' and I looked over the tank and seen Moore, the foreman, give the signal to back up, and George Tighe lining the switch up for 4. I started back, and I went back probably two engine lengths, maybe a little more, and the fireman hollered, and he says, `Stop, we have run over Lou Ostertag,' and I stopped as quick as I could. Q. Where was the west end of this train 157, the tank of the helper engine on that train, with reference to the clearing point when you stopped before...