Ottley v. St. Louis-San Francisco Ry. Co.

• Decision Date: 11 September 1950
• Docket Number: No. 41703,No. 1,LOUIS-SAN,41703,1
• Citation: 360 Mo. 1189,232 S.W.2d 966
• Parties: OTTLEY v. ST.FRANCISCO RY. CO
• Court: Missouri Supreme Court

Page 966

232 S.W.2d 966

360 Mo. 1189

OTTLEY v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 41703.

Supreme Court of Missouri, Division No. 1.

Sept. 11, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 9, 1950.

E. G. Nahler, C. H. Skinker, Jr., St. Louis, Thos. E. Deacy, Kansas City, for appellant.

David Trusty, Eugene R. Brouse, Sam Mandell, Kansas City, for respondent Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

LOZIER, Commissioner.

This is an appeal in a Federal Employers' Liability Act case wherein respondent (hereinafter called plaintiff) had verdict and judgment for $10,200. Appellant (hereinafter called defendant) contends that its motions for directed verdict should have been sustained and that plaintiff's main instruction is erroneous.

Plaintiff, a freight car inspector, sustained his injury while working in defendant's Rosedale, Kan., Freight Yard. This was a busy 'classification' yard in which about 700 cars were received daily. It consisted, primarily, of a large number of parallel switch tracks, used in breaking and making freight trains and in transferring cars, or 'cuts' (cars coupled together) from one train to another. These switch tracks ran northeast-southwest and at each end were connected with a lead track. Switch engine crews operated on and off of the lead tracks, 'kicking in' or shunting cars or cuts upon some of the switch tracks and removing them from others.

Plaintiff was injured February 17, 1946. He and his working partner, Parrish, had completed inspection of cars on track 17 and were walking toward track 42 to inspect cars on that track. The direct route to track 42 was blocked by a string of about 30 empty hopper coal cars, coupled together, standing on track 20 with no engine attached. Instead of walking around either end car or climbing over a car, plaintiff crawled beneath the couplers of two cars. These couplers were about 30 inches above the ties. When he was under the couplers, crawling on his hands and knees or crouched between the rails, a cut of 4 moving wheat-laden cars (which had been kicked in by the switch crew, operating on the southwest lead track) came in contact with the end car of the string. The entire string was moved and plaintiff's right foot was mashed by a moving car wheel, and he sustained other injuries.

Plaintiff pleaded that his duties required him to go to various parts of the yard for the purpose of inspecting cars and making light repairs; that on that occasion he was crossing the yard; that there was a long string of dead cars on the track; that 'it was necessary for plaintiff to get across said track in order to carry out further duties and inspections and repairs assigned to him' by defendant; that 'in order to go around said train it would have been necessary for him to travel several hundred feet, and in such circumstances he was ordered, directed and required' by defendant 'to go under or over said standing cars, and it was part of his duties and orders to go under said standing cars at said time in order to cross said tracks and get on the other side; that he attempted in accordance with orders of his superior and in accordance with the usual custom and practice to pass under said standing cars and was in the act of so doing and engaged in performing his customary duties as aforesaid when and where' defendant 'negligently and without warning caused said cars to be negligently and violently and with unusual and extroardinary and unnecessary force struck and violently knocked, shunted, rolled and moved,' thereby injuring plaintiff.

The specific negligence alleged by plaintiff was defendant's 'ordering, directing and requiring plaintiff to pass under said standing cars and violently and without warning colliding with and striking same' and 'in so failing to provide and maintain a reasonably safe place to work and reasonably safe working conditions.'

Defendant, after denying generally, answered that if plaintiff was injured on that occasion, then the injury 'was directly caused by plaintiff's own careless and negligent failure to exercise ordinary care and caution for his own safety and by plaintiff's violation of safety rules and regulations of his employment by' defendant 'and more particularly Rules 7, 35, 316 and 317.' Defendant then set out these rules, viz.:

'Rule 7. Employees must not go between cars for any purpose without protection or knowing that cars or engines are not coming in from either end of track.'

'Rule 35. Employees must never crawl under cars or equipment unless proper protection is provided.'

(Rules 316 and 317 set out the 'blue flag' rule, relating to car inspectors or other employees inspecting or working upon, under or about cars. The evidence of both parties showed that Rules 316 and 317 were not applicable here as plaintiff, when injured, was not inspecting or working upon, about or under the cars on track 20. Unless otherwise indicated, references hereinafter to rules or safety rules are to Rules 7 and 35.)

At the time of his injury this 64-year-old plaintiff had been defendant's employee for 24 years. The preceding year he had worked in the Rosedale Yard. His duties as an inspector were the inspection of cars on the switch tracks and their safety appliances and the making of minor repairs. If he deemed major repairs necessary, he 'bad ordered' the car, i. e., had it sent to a 'rip' (repair) track. His work required him to cross and recross the switch tracks often each day.

Plaintiff testified that he was thoroughly familiar with the operations of the yard and the manner in which switch crews moved cars and cuts on and off switch tracks from the lead tracks; that cars could be kicked in on any switch track from either lead at any time, even when the switch engine on the lead track was 3 or 4 blocks away; that it was the usual procedure for cars to be kicked in on a track; that 'they uncoupled them and they rolled on down to the other cars,' by gravity and momentum; that 'they let them go and hit the other cars'; that 'they were moving cars all the time there'; that 'cars were constantly moving everywhere'; that 'we didn't know what time the switch engine would put cars in on any track' or 'when the cars were coming in on any track'; and that 'you just have the feeling that any car will move any minute down there.'

Plaintiff stated that, at the time of the accident, he and Parrish were not engaged in the inspection of, or engaged in the performance of any duties relating to, the cars on track 20; that he knew that that track was being used as a track to 'set in' cars; that he knew that these particular cars were there only temporarily; that he 'knew it was dangerous to attempt to go between the cars without knowing whether or not they were going to be moved'; that 'we came to this string and looked up and down both ways to see if anything was moving and there wasn't'; that to the southwest he could see as far as the lead switch to track 20 (500 or 600 feet from where he crawled under), but he could not see the lead track because cars standing on other switch tracks obstructed his view; that he knew a switch engine was working on that lead track; that when he was under the couplers something hit the string 'a terrible jolt that started the cars rolling * * * about 25 or 30 feet before it came to a stop'; that this was 'an unusual movement' and 'not the kind they made every day'; and that, ordinarily, if the brakes on standing cars were set, a string would move only 8 or 10 inches.

Plaintiff stated that he did not notify anyone that he intended to crawl under the couplers; that he 'didn't say anything to Parrish'; and that 'when an engine drops cars against a cut, such as occurred in this case, we would not expect a signal from the engine as the switch crew would have no way of knowing when we were going through a cut of cars, as in this case.'

Plaintiff had been given a rule book, had receipted for it and had familiarized himself with the rules. He stated that he 'was familiar with the rule that no men were supposed to crawl under cars'; that he 'knew it was dangerous to attempt to go between these cars without knowing whether or not they were going to be moved'; and that 'I simply took another chance in going through these standing cars, under the couplers, in this case, and it so happened that these cars moved when I was under there.'

Plaintiff stated that inspectors usually did not 'walk clear down to the end of a long string of cars to get across'; and that the usual practice was to 'cut through' the cars, 'sometimes we go over couplers, sometimes under couplers.' There was no evidence that inspectors were ever directed to crawl under the cars or under the couplers. Plaintiff admitted that he had never received such instructions. He went only so far as to state that his foreman had said 'not to walk around the ends of the cars, for us to cut across.' As stated by plaintiff's counsel at the trial, plaintiff's testimony was that 'he had never been instructed how to do it, just to get across.'

Plaintiff testified that 'it was necessary to cut across to get the work done'; that the foreman and other inspectors 'cut across'; and that 'cutting across' was the general practice. There was evidence that it was even unusual for the inspectors to go over the couplers and that such practice was hazardous. In plaintiff's opinion, it was 'too severe' to go over the cars and was 'safer' to go under the couplers than over.

There was evidence, undisputed, that inspectors were given positive oral instructions not to crawl under cars without protection; that they were urged to follow the safety rules (including the 'blue flag' rule when working on or under cars) and were admonished (their superiors had no authority to fine) when observed breaking them; that plaintiff had never been told to disregard Rule 7; and that he 'didn't like to observe rules and was always...