Phippin v. Missouri Pac. R. Co.

• Decision Date: 12 December 1905
• Parties: PHIPPIN v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

93 S.W. 410

196 Mo. 321

PHIPPIN v. MISSOURI PAC. R. CO.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

On Rehearing, May 22, 1906.

1. MASTER AND SERVANT—RAILROADS—INJURIES TO SWITCHMEN.

Where plaintiff, a railroad switchman, was injured by the cornering of certain cars he was standing to couple at night, which was caused by the failure of the switch tender to perform his duty to see that the switches were properly lined so as to bring the cars together, according to the rules of the railroad company, such failure constituted negligence for which the railroad company was liable under Rev. St. 1899, § 2873, making railroads liable to servants for injuries caused by the negligence of fellow servants.

2. SAME—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a switchman, evidence considered, and held, that plaintiff was not guilty of contributory negligence, as a matter of law.

3. SAME—ASSUMED RISK.

Where it was the duty of a switch tender to properly line the switches so that cars would not corner, and plaintiff was injured, while waiting to couple certain cars, by the switch tender's failure to perform such duty, the negligence of the switch tender was the negligence of the master, the risk of which plaintiff did not assume.

4. TRIAL—INSTRUCTIONS—ASSUMED FACTS.

The court charged that if the jury believed plaintiff was attempting to couple a stationary freight car to a moving car backing toward the same for defendant railroad company and his right hand was caught between the corners of the cars and injured, and that the injury was caused by the negligence of the switch tender in improperly lining switches, causing the corners of the cars to collide, and plaintiff was in the exercise of ordinary care himself, he was entitled to recover. Held, that such instruction was not objectionable as assuming that the throwing of the switch for the wrong track was a negligent act.

On Rehearing.

5. APPEAL—REHEARING—NEW QUESTIONS.

A question raised neither at the trial nor on the hearing of an appeal cannot be raised on rehearing.

6. DAMAGES—PERSONAL INJURIES—EXCESSIVENESS.

Plaintiff, a switchman, had his right hand so crushed between cars that it had to be cut away, with the exception of the thumb, which was stiff and useless. He was confined to the hospital for six months, and underwent intense pain and suffering, and at the trial parts of the stump were unhealed. He had been unable to work since the injury, and was permanently disabled from ever again following his vocation. He was 44 years of age at the time he was injured, and had been receiving $90 per month. Held, that a verdict for $12,000 was excessive, and should be reduced to $9,000.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by George L. Phippin against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed conditionally on rehearing.

Elijah Robinson, for appellant. Walsh & Morrison, for respondent.

GANTT, J.

On the 22d day of March, 1902, the plaintiff commenced this action for damages in the circuit court of Jackson county, Mo. After alleging that the defendant was a railroad corporation duly organized under the laws of this state, his petition proceeds to aver: "That on the 15th day of September, 1901, and for several months prior thereto, plaintiff was, and had been, in the defendant's employ as a switchman in its railroad yards situated in what is known as the west bottoms of Kansas City, Jackson county, Mo.; that plaintiff's duties were to couple and uncouple cars, switch them about and make them up into trains, and to obey orders and directions of his yardmaster and foreman, who were superior in grade and authority to plaintiff; that it became and was the duty of the defendant at such time and place to use ordinary care to provide plaintiff a reasonably safe place in which to work; to use ordinary care to avoid injuring plaintiff while performing his duties; and that it was also defendant's duty, acting through plaintiff's superiors as aforesaid, to take proper precaution to prevent injury to plaintiff; that at or about the hour of 8:30 o'clock p. m. of the 15th of September, 1901, and in the darkness of the night, plaintiff was working with a switch crew, whose foreman was one G. W. Zibble, and said crew was operating defendant's engine 310, which was in charge of one F. F. Wood, an engineer; that said defendant at such time and place provided a switch tender, one Edward Gibbony, whose duty it was, under the supervision of said yardmaster and foreman, to throw the switches in said yards and see that the same were properly set; that at said time and place there were certain stationary cars standing on what is and was known as track No. 18, which was and is located at a point in said yards where Liberty street and Union avenue, both public streets of Kansas City, Jackson county, Mo., would intersect, if prolonged; and that said stationary cars stood about 40 or 45 feet west of the point at which was located a certain ground switch, and at the point of said switch both said track No. 18, and also a certain track known as track No. 17, ran into a certain main track; that at said time and place it became and was the duty of plaintiff to couple said stationary cars onto certain other cars at the time being moved backwards attached to the switch engine aforesaid, and plaintiff was standing with his right hand upon the rod of the first of said stationary cars in readiness to make the coupling at the place and in the manner required by his duty, and under the custom and rules of the defendant; that the point at which stationary cars were standing was in close proximity to said track No. 17, so that cars running upon said track No. 17 in a westerly direction would necessarily come in contact with the corner of the car at which plaintiff was standing; that when said cars were backed from said main track onto track No. 17, instead of track No. 18, and on account of being backed upon said track No. 17 instead of said track No. 18, the coupling did not meet, but the corners of the cars at which plaintiff was so standing, engrossed in his work as aforesaid, were brought into violent contact with each other and his body was thus caught between the said cars, and his right hand, arm, and wrist caught between the corners of said cars and mashed and crushed so that his entire hand, save and except a fragment of the thumb, had necessarily to be amputated; that said injury was occasioned to plaintiff by the negligence, carelessness, and want of ordinary care on the part of the defendant, its agents, servants, and employés in the following respects, to wit: That said defendant by and through its agent, servant, and employé, said Gibbony, negligently, carelessly, and unskillfully threw said switch, permitting the moving cars to run in upon track No. 17 instead of track No. 18. Other charges of negligence are contained in the petition, but all of them except the foregoing were disregarded on the trial of the case, and the case was submitted to the jury solely on the question of the negligence of the switch tender, Gibbony, in throwing the switch for track No. 17 instead of track No. 18. The petition further alleged that the said injury to plaintiff has caused him the most intense pain and suffering, both mental and physical, ever since its occurrence, and will for some time in the future continue to do so; that at the time of his injury plaintiff was a strong, able bodied man and was able to earn, as a railroad switchman, $90 per month, but that his earning capacity, by said injury, has been entirely destroyed; that plaintiff has been permanently deformed and rendered a cripple thereby and has been deprived of all ability to earn his own livelihood, all to his great damage in the sum of $15,000, for which he prays judgment and costs. The answer admitted the incorporation of the defendant, and that on or about September 15, 1901, an accident occurred wherein plaintiff was injured, but denied that he received injuries of the character and to the extent in said petition set forth, and denied that plaintiff's injuries were caused by any negligence or carelessness on the part of the defendant, its servants, agents and employés, and denied each and every other allegation in said petition, not expressly admitted to be true. There was also a plea of contributory negligence. Plaintiff filed a reply, which was a general denial of all new matter alleged in the answer. The cause was tried on the 23d of June, 1902, and resulted in a verdict for the plaintiff for $12,000 and costs. In due time the defendant filed its motion for new trial and in arrest of judgment, which was heard and overruled, and the defendant excepted and thereupon the defendant appealed to this court.

On the part of the plaintiff the evidence tended to prove that the plaintiff was a night switchman of the defendant in its yards at Kansas City at the time he received the injury complained of. The night yardmaster was Joseph Maroney, and the crew of which plaintiff was a member consisted of Emmet Green, the foreman, George Zibble, and C. Mills, switchman, Wood, engineer, Burnett, fireman, and a switch tender named Gibbony and the plaintiff. At the time of the accident, Green had gone to lodge, and Zibble had been appointed foreman in his place by Maroney, the yardmaster. Mills was over at the Union Pacific yards some distance away, Wood and Burnett were on the engine and, so far as the record shows, knew nothing of the facts causing plaintiff's injury. Gibbony was dead at the time of the trial. The plaintiff testified that the point at which the accident occurred was about 45 feet from the ground switch connecting the two tracks Nos. 17 and 18. Plaintiff testified that the photograph marked Exhibit A, attached to plaintiff's additional abstract of the record, correctly represented the...