Parrent v. Mobile & Ohio Railroad Co.

Citation70 S.W.2d 1068
Decision Date19 April 1934
Docket NumberNo. 31538.,31538.
PartiesJOHN H. PARRENT v. MOBILE AND OHIO RAILROAD COMPANY, a Corporation, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court of City of St. Louis. Hon. Frank Landwehr, Judge.

AFFIRMED.

(1) Under the pleadings and the evidence as a whole, a case was made for the jury on the issue of appellant's negligence, and therefore the demurrer was properly overruled. (a) There is substantial evidence that respondent was struck by the car. Gunning v. Cooley, 281 U.S. 90; Davis, U.S. Agent of Transportation, v. Wolfe, 263 U.S. 239; Ry. Co. v. Wagner, 241 U.S. 476; C. & N.W. Ry. Co. v. Struthers, 52 Fed. (2d) 88; Ry. Co. v. Cole, 260 Fed. 926; I.C.R. Co. v. Norris, 245 Fed. 926; N. & W. Ry. Co. v. Gillespie, 224 Fed. 316; Railroad Co. v. Duke, 192 Fed. 306; B. & O. Railroad Co. v. Taylor, 186 Fed. 828; Donegan v. Ry. Co., 165 Fed. 869; Young v. Wheelock, 333 Mo. 992; Potterfield v. Terminal Railroad Assn., 319 Mo. 619; Schleuter v. Ry. Co., 316 Mo. 1266; Burtch v. Wabash Ry. Co., 226 S.W. 338; Miller v. Schaff, 228 S.W. 488. (b) There is substantial evidence that respondent was not given any timely warning of the movement of the car. See cases cited under (a).

FERGUSON, C.

The plaintiff, an employee of the defendant railroad company was injured while engaged, on the night of October 6, 1929, as a remember of a "wrecking crew" in rerailing a freight car in one of defendant's freight trains, which car had derailed near High Rock, Illinois. The derailment occurred on "defendant's main line" and the work of rerailing the freight car was for the purpose of facilitating and enabling the movement of the train of which said car was a part and which train carried interstate shipments of freight and also to clear the main line track in order that the movement of defendant's interstate trains over that track might not be delayed or impeded. This action for damages for the injuries sustained was brought under the Federal Employers' Liability Act and the verdict and judgment was for plaintiff in the sum of ten thousand dollars from which judgment defendant brings this appeal.

At the point of derailment the railroad track ran north and south. The freight train was northbound. The derailed car was the first or northernmost of two "flat cars" loaded with telegraph poles or piling." Each of these "flat cars" was forty-one feet in length. The poles being sixty feet in length and too long to be carried on one car were so placed or loaded upon the two flat cars as to leave a vacant space of about fifteen feet at the northern or front end of the north or first car and approximately seven feet at the southern end of the second car. The track at this point is upon an embankment. On the west and at the foot of the embankment a shallow creek runs "about parallel with the track" and at the time of the accident "there was about two inches of water in the creek." The creek bottom at that point is "solid rock" and the west side of the embankment, as described by defendant's witness Sherwood, a section foreman in charge of that part of the track, slopes "at just a little bit of an angle — is not quite perpendicular" to the creek. The same witness testified that by measurement it was "ten feet and four inches" from the top of the embankment to the "bottom of the creek." While plaintiff stated that distance as fifteen feet. The west side of the embankment was walled with rock "to hold the bank and keep it from caving in." The ties "extended beyond the rail about eighteen inches." Defendant's witnesses testified, that by actual measurement it was "thirteen feet and eight inches from the west rail" to the west edge of the embankment or "top of the rock retaining wall;" that "rock ballast extended about forty-seven inches out (west) from the west rail;" that the space covered by the rock ballast is "practically level;" that the remainder of the space to the west edge of the embankment is dirt and that the "dirt space" is lower than the rock ballast apparently sloping so that the top of the rock retaining wall or the west edge of the embankment is some "eighteen or twenty inches" lower than the west line or edge of the rock ballast. Plaintiff at one time testified that it was six feet from the west end of the ties to the west edge of the embankment and later stated the distance "from the west rail of the track to the creek bank" was, by measurements which he made, eight feet; presumably he designated the top of the rock wall as the "creek bank." The front or northernmost truck of the north or first of the two flat cars loaded with piling had gone off the track to the east, that is the west wheels of that truck were between the rails of the track at or near the east rail and the east wheels were on the ground east of the east rail of the track. Plaintiff, lived at Murphysboro, Illinois, and had been in defendant's employ for twenty-three years. He was called on this occasion to serve as a member of the "wrecking crew" which was sent to the scene of the derailment. The "wrecking crew" left Murphysboro at about 6:45 P.M., and proceeded, with a locomotive engine pushing a steam "derrick" or "hoist," to the point of derailment. This "wrecking crew" was composed of six men, Rodman, the foreman, Joe Franza, the engineer or operator of the derrick, Snyder, Muench, Nickens and plaintiff. The hoist or derrick was pushed to within about six feet of the north end of the derailed car. Chains were placed under the truck and extended and fastened over the north end of the flat car so as to hold the truck "up against the car." A cable was then fastened to the north end of the car and attached to a hook "on the boom" of the derrick. Plaintiff assisted in these preparations. By means of the derrick, and at the order of the foreman, the car was lifted from the ground and suspended about five or six inches above the track. The foreman then ordered Franza, the derrick operator, to swing the car to the west which was done. The wheels of the car however were then, according to the plaintiff, too far east and out of alignment with the rails "about eight inches" while the foreman estimated the car out of alignment "three or four inches." It was dark and the men were working by the light of hand torches and the aid of a light of some kind on the derrick. The foreman, Snyder and plaintiff were working on the west side of the derrick and the train, Joe Franza on the derrick while the other two members of the wrecking crew, Muench and Nickens were on the east side of the train. We come now to plaintiff's version and testimony as to how he was injured. Plaintiff testified that as and immediately after the car was swung to the west as we have described, he and Rodman, the foreman, were standing on the west side of the derrick and Rodman then said to him: "Go back there and see how much it lacked of `lining;'" that thereupon, and pursuant to the foreman's order, he went along the west side of the track "back to the trucks to determine how much the next swing would be;" that "something like seven or eight feet from the front end (the north end) of the derailed car" he "stooped down" so he could "look in behind the truck to see about how much it lacked" being in alignment; that he "had one knee on the end of a tie squatting down there;" that while he was in that position he heard Rodman, the foreman, "holler" to Joe Franza, the operator of the derrick: "Line it over Joe;" that he knew Rodman's order "meant that the car was to be lined over to the west" and that he "immediately tried to get up ... jumped up trying to get out of the way but was struck by the sill pockets of the swinging car ... it knocked me backwards and I went off of the embankment... . I was in a stooping position at the time it struck me... . I never did straighten up. I went right on off the embankment. The lick of the car was what put me over the embankment." On cross-examination plaintiff stated, "the car swung somewhere around six or seven feet west ... that is, it covered that much space in the swinging movement and I was carried along with it." Plaintiff fell to the rock creek bottom and sustained serious and permanent injuries. No question is made as to the amount of the verdict. Plaintiff's testimony constitutes the whole of the evidence on his part as to what occurred and the facts and cause of the injury.

The negligence charged, and submitted by instructions to the jury, was that while plaintiff, pursuant to the order of the foreman, was doing certain work which necessarily brought him in close and dangerous proximity to the car and in a position "where he would be injured in the event the car was moved" the car was moved, at the direction and order of the foreman, without any warning to plaintiff that it was about to be moved and without affording plaintiff a reasonable opportunity to reach...

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