Patrum v. St. Louis & S. F. R. Co.

• Decision Date: 23 June 1914
• Docket Number: No. 16266.,16266.
• Citation: 259 Mo. 109,168 S.W. 622
• Court: Missouri Supreme Court
• Parties: PATRUM et al. v. ST. LOUIS & S. F. R. CO.

168 S.W. 622

259 Mo. 109

PATRUM et al. v. ST. LOUIS & S. F. R. CO.

No. 16266.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. APPEAL AND ERROR (§ 842)—REVIEW— QUESTIONS OF FACT.

In determining on defendant's appeal whether plaintiff offered sufficient evidence to go to the jury, the Supreme Court cannot reject testimony because the record showed evidence that the witness had made contradictory statements, the making of which he denied; that being a question for the triers of fact.

2. MASTER AND SERVANT (§ 278)—INJURIES TO SERVANT—EVIDENCE—SUFFICIENCY.

In an action for the death of a brakeman run over when thrown from the top of a freight car which was struck by other cars which were being coupled, testimony by a nonexpert witness that he considered the impact of the coupling a hard jolt is not sufficient to show want of ordinary care in making the coupling.

3. MASTER AND SERVANT (§ 226)—INJURIES TO SERVANT—ASSUMPTION OF RISK.

A servant does not assume the risk of the negligence of the master or a vice principal.

4. MASTER AND SERVANT (§ 203)—INJURIES TO SERVANT — "ASSUMPTION OF RISK" — "CONTRIBUTORY NEGLIGENCE."

The term "assumption of risk" is used in Missouri to denote that principle of law whereby a servant assumes the risk of injury from hazards incidental to the business without the master's negligence, and, when a servant enters into or remains in the service of a master with actual or constructive knowledge of dangers arising from the master's negligence and without a promise of remedy, the servant's continuance is termed "contributory negligence."

5. MASTER AND SERVANT (§ 276)—INJURIES TO SERVANT — ACTIONS — EVIDENCE—SUFFICIENCY.

In an action for the wrongful death of a brakeman killed when thrown from a freight car by the impact of another car which struck it when a coupling was being made, evidence held insufficient to show that the servants in charge of the train were negligent or that the death was due to anything but an ordinary risk of the employment.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by Paul U. Patrum and others against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Plaintiffs, as the minor children of Henry A. Patrum, a brakeman on a freight train, employed and killed by defendant while in the line of duty, sue for his death.

Deceased, a widower, 43 years old, long in service as a railroad man and experienced in the work and duties of a brakeman, was killed at Mansfield, Mo., on the 10th day of August, 1906. Plaintiffs had a verdict for $5,000 damages, but thereof entered a remittitur for $500 and had judgment for $4,500, from which the defendant in the usual way appealed to the St. Louis Court of Appeals. Territorial jurisdiction being shifted by legislative enactment, the case in the course of time came to the Springfield Court of Appeals, wherein Judge Cox having disqualified himself for that he had sat therein nisi, and Judges Gray and Nixon being unable to agree, the Hon. V. O. Coltrane, a well-known and able member of the Springfield bar, was agreed on by stipulation as special judge and as such rendered an opinion herein affirming the case. In this opinion of affirmance Judge Gray concurred, but Judge Nixon dissented, and, deeming the views expressed in conflict with the holdings of this court and of the other Courts of Appeals, requested that the case be sent here, which was accordingly done.

The specific allegation of negligence as pleaded in the case, coupled with a general statement of the facts, is thus stated in the petition:

"That said Patrum in the performance of his duty, and while in the line of his work as such brakeman, climbed upon said rear car for the purpose of setting the brake thereon and stopping said car; that while he was so engaged, and while he was on the top of said car setting said brake, the agents, servants, and employés of defendant engaged with him in handling said engine and cars, they then knowing that the said Patrum was in such position and so engaged, negligently and carelessly drove said engine against the other of said cars which were between the engine and the car on which the said Patrum then was as above stated, with such force as to drive said car against the car on which the said Patrum was engaged in setting the brake; that the impact of said cars so driven together was so sudden, forceful, and violent that as a result thereof the said Patrum was thrown from said car to the track, one of said cars passing over his body, so injuring him that as a result thereof he died."

The answer was a general denial; the defense was the assumption of risk; of which more anon.

The facts, in brief, as developed by the testimony offered by plaintiffs (the defendant offered none, merely contenting itself with demurring to that offered by plaintiffs), are about as follows: There are at Mansfield on defendant's line of railroad three tracks, called in the record the "main track," "passing track," and "stock track." The train, on which Henry A. Patrum (hereafter for brevity called the "deceased") was employed as a brakeman, stopped on the day that he was killed on the passing track for the purpose, among others, perhaps, not here pertinent, of picking up a stock car loaded with hogs belonging to one W. J. Tripp. The engine was cut off from its train and run over to the north end of the stock track for the purpose of doing the switching made necessary in coupling onto and in picking up the car load of hogs. There was upon the stock track, besides the car load of hogs, at least one other car which was empty. By large inference other cars were thereon, but whether there was or not such other cars cut but little figure in the case. This stock track was on a grade, the south end being lower than the north end, on which the engine came in; but what per cent. the grade was nowhere appears in the record. In picking up the stock car it became necessary, as the witness Vosbury (who was conductor on another freight train which had halted on the main line) says in his testimony, to make three couplings. In this work Vosbury, who desired to use the same tracks for switching, was assisting Young, the head brakeman, and the deceased. They were attempting to make at least two of these three couplings at once. At the first attempt one coupling was made by the head brakeman Young, but Vosbury failed to make his, thus necessitating the backing up of the engine and the cars attached thereto by the first coupling, and a second attempt was made. By reason of the striking of the engine against the cars, the stock car with the hogs therein, which had failed to couple on the first attempt, was pushed up and struck against an empty car to the southward standing on the stock track and on a downgrade. This empty car began rolling off downgrade toward the south and toward the switch leading to the main line. Deceased, as it was his duty to do, climbed up on the empty car to stop it, and to this end commenced setting the brake. Whether he had concluded this work prior to falling, as hereinafter stated, the record does not show. While deceased was setting the brake and while he had hold of the brake wheel and facing toward the north and toward the oncoming engine, the second attempt to couple was made. The stock car was thrust by the impact back against the empty car upon which deceased was, and he was thrown or fell between the empty car and the stock car and was run over by the latter and received the injuries which shortly caused his death. When deceased fell, Vosbury, who was standing near, caught hold of him and attempted to pull him from between the cars; but before he was able to do so the first wheel caught him, ran over one leg, and a second wheel ran almost straight down the other leg, badly crushing and mangling him. The signal to the engineer to back up at the time he did back up and when the empty car was struck and deceased was thrown therefrom and injured was given by Young, the head brakeman, who gave what is called among trainmen a "heavy signal," which seems to be a signal used when a coupling is attempted after one or more efforts to couple have failed. At the time this signal was given, the stock car and the empty car, which deceased was on and attempting to stop by braking it, were some six or eight feet apart.

The defendant, as stated, put in no testimony whatever, but merely interposed a demurrer to that offered by plaintiffs. The bone of contention in the case is as to whether the trainmen, the fellow servants of deceased, used ordinary care in making the coupling in which they were engaged, when deceased lost his life. There is no very serious contention lodged in the case upon any other point. If this work was done in the usual, customary, and ordinary way, in which freight trains are coupled and switching done thereon, as defendant contends, then defendant was not guilty of negligence, and the doctrine of the assumption by deceased of the usual and ordinary risks of his employment precludes recovery. But if this coupling was made in an unusual, unnecessary way by an impact, bump, or jolt, out of all proportion to the necessity of the situation and circumstances, then there was not ordinary care, such as defendant was required to exercise so as not to injure deceased, and plaintiffs should recover.

Some questions are raised as to the introduction of testimony, as also of the giving of instructions and of the sufficiency of the charge of negligence in the petition; but these we shall discuss in the opinion, if we shall reach them.

W. F. Evans, of St. Louis, and John H. Lucas, of Kansas City, for appellant. Patterson & Patterson, G. A. Watson, and G. D. Kirby, all of Springfield, for respondents.

FARIS, J. (after stating the facts as above).

The serious question in the case, the one most strenuously urged upon us by defendant and...