Potterfield v. Terminal Railroad Association

• Decision Date: 24 March 1928
• Docket Number: No. 26294.,26294.
• Citation: 5 S.W.2d 447
• Parties: PEARL LENA POTTERFIELD, Administratrix of Estate of EARL WADE POTTERFIELD, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

5 S.W.2d 447

PEARL LENA POTTERFIELD, Administratrix of Estate of EARL WADE POTTERFIELD, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.

No. 26294.

Supreme Court of Missouri, Division Two.

March 24, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

AFFIRMED.

J.L. Howell and R.E. Blodgett for appellant.

(1) Defendant's instruction in the nature of a demurrer to the evidence should have been given, because there was no evidence that the particular movement in which deceased was engaged at the time in question was of an interstate character. New York Central Railroad Co. v. Carr, 238 U.S. 260; Erie Railroad Co. v. Welsh, 242 U.S. 303. (2) The court erred in giving Instruction 3 on behalf of plaintiff, in that the instruction allowed a recovery if one or more of the cars in the train of cars contained one or more shipments originating in one state of the United States and destined to another and different State. (3) Instruction 3 on behalf of plaintiff was erroneous, in that said instruction gave a roving commission to the jury and was not within the purview of the pleadings and the evidence, in that it allowed a recovery "if you find that defendant's foreman in charge of defendant's switching crew failed to exercise ordinary care, and if you find that by reason thereof Earl Wade Potterfield was injured and died as a result thereof." Lairson v. Rys. Co., 232 S.W. 484; Wagner v. Railroad Co., 232 S.W. 771; Forrester v. Fire Clay Products Co., 231 S.W. 668; Hollinghauser v. Aide, 233 S.W. 39; McKinzie v. Randolph, 238 S.W. 828; Kidd v. Light & Power Co., 239 S.W. 584; First Nat. Bank v. Hoover, 242 S.W. 107; Karte v. Mfg. Co., 247 S.W. 417; Tucker v. Bank & Trust Co., 251 S.W. 406; State ex rel. People's Bank v. Melton, 251 S.W. 447. (4) The verdict is against the credible evidence. (5) The verdict is excessive.

Charles P. Noell for respondent; Glen Mohler of counsel.

(1) Defendant's instruction in the nature of a demurrer to the evidence was properly refused on the question of deceased being engaged in interstate commerce at the time of his death. Kinzell v. Ry. Co., 250 U.S. 133; Pederson v. Railroad Co., 229 U.S. 145; Cudahy Packing Co. v. Parramore, 263 U.S. 418. (2) The court did not err in giving Instruction 3 on the question of interstate commerce, since that instruction required the jury to find that the train contained cars carrying shipments en route from one state to another state. See authorities above. (3) The giving of Instruction 3 does not constitute reversible error on account of the criticism that one clause is too broad and general, since all of the clauses in the instruction are connected in the conjunctive, and even if the clause complained of were left out, the instruction would be complete and sufficient to properly charge the jury. By the insertion of the clause complained of, plaintiff assumed an unnecessary burden of which appellant cannot complain. McIntyre v. Frisco, 227 S.W. 1047; Kendrick v. Ryus, 225 Mo. 168; Berry v. Railroad, 214 Mo. 604; Houston v. American C. & F. Co., 282 S.W. 170; Bauer v. Fahr, 282 S.W. 150; Troutman v. E. St. Louis Co., 224 S.W. 1014; Gibler v. Railroad, 129 Mo. App. 93; Harrington v. Sedalia, 98 Mo. 583; Crawford v. Doffler, 120 Mo. 362; Benham v. Taylor, 66 Mo. App. 314. (4) There was substantial evidence to take the case to the jury, giving to plaintiff the benefit of the testimony and reasonable inferences therefrom. (5) The verdict is not excessive. Kidd v. Ry. Co., 274 S.W. 1079; Gill v. Railroad, 302 Mo. 331; Shaw v. Railroad, 282 S.W. 416.

HENWOOD, C.

This is a suit for damages under the Federal Employers' Liability Act, filed in the Circuit Court of the City of St. Louis, by the respondent (plaintiff below), as administratrix of the estate of Earl Wade Potterfield, for the benefit of herself, as the widow, and two minor children of deceased, based on the alleged negligence of appellant (defendant below) as the cause of his death, while employed by appellant as a railroad switchman and while engaged in interstate commerce. At the close of the plaintiff's evidence in chief, the trial court directed a verdict as to the St. Louis Merchants Bridge Terminal Railroad Association, it being originally joined as a defendant. The trial resulted in a verdict and judgment for the plaintiff in the sum of $22,750 against the Terminal Railroad Association of St. Louis, and the case is here on its appeal from that judgment.

Proof made by the plaintiff shows that, at the time in question, defendant (Terminal Railroad Association of St. Louis) owned and operated certain railroad engines, cars, tracks and switch yards in the city of St. Louis, Missouri, and was engaged as a common carrier of freight and passengers at said city and between said city and the city of East St. Louis, Illinois. One of defendant's switch yards, in St. Louis, was known as the Eleventh Street Yard. It was connected with the switch yard of Cupples Manufacturing Company known as Cupples Station and located between Seventh and Ninth Streets. The tracks at Cupples Station were used for the accommodation of various business and commercial enterprises of St. Louis, in loading and unloading shipments of freight. Early every morning, usually between six and seven o'clock, defendant brought a train of cars from East St. Louis, Illinois, to its Eleventh Street Yard in St. Louis, for immediate delivery to Cupples Station. This train of cars was known as the Cupples drag, and consisted of cars received from various railroad companies which terminated their westbound freight hauls at East St. Louis. Potterfield (deceased) was employed by defendant as a switchman, and was run over and killed while he and the other members of his switching crew were engaged in moving one of these trains of cars (the Cupples drag) from defendant's Eleventh Street Yard to Cupples Station, about 6:38, on the morning of February 9, 1922. This switching crew was called the Tenth Street crew or the Cupples crew and included Hartman, foreman, Potterfield, Gilbert and Maddox, helpers, Mason, engineer, and Pierson, fireman. The switch engine (headed east) was coupled to the west end of the Cupples drag of twenty-one cars and was shoving this train of cars eastward on "14 lead" toward "Cupples crossover" to "track 15," the next track on the south. The clearance was narrow between "Cupples crossover" and "72 main line," the next track on the north. Gilbert had been lining up the switches for Cupples Station and was standing about 300 feet east of the east end of the Cupples drag. Potterfield, by a stop signal, had stopped the Cupples drag at the west end of "Cupples crossover" to allow a C.B. & Q. westbound passenger train to pass on "72 main line." While the passenger train was passing, Potterfield was standing "straddle of the north rail" at the east end of the Cupples drag, facing north and looking at the passenger train as it passed. Hartman, the foreman, was standing on the north side of the Cupples drag and about two car-lengths west of Potterfield. Before the last coach of the passenger train had passed Potterfield, Hartman gave a back-up signal, causing the Cupples drag to be moved suddenly and causing Potterfield to be knocked down by the end car and to be run over by the wheels on the east end and north side of said car, before the train was stopped. At this time, Maddox was standing on the north side of the Cupples drag, about one or two car-lengths from the engine, and engaged in passing signals to the engineer. Weber, one of defendant's switch tenders, who was standing one car-length west of Potterfield on the north side of the Cupples drag, testified as follows:

"On this particular morning they were shoving through they coupled the engine on and as they coupled the engine on they generally let the cars roll for a couple car-lengths to see if they are all together, and the man at the end of the train stops the train to see that they are all together and gives the back-up signal for them to proceed eastward. He did this and he started shoving east; he was riding the east car and he got right about this point of this switch right here (indicating on photograph, plaintiff's Ex. B) and give a stop sign to stop the train on account of the passenger train coming up this main line here (indicating), and he stepped around the end of the car to wait until this train, passenger train, had passed, and I was leaning against the car there and I could just see him step around the end of the car, and after he stepped around the only thing I could view was his feet, and foreman Hartman was just a couple car-lengths west of him, and before this train, this passenger train, had passed foreman Hartman gave a back-up signal to the engineer, and started backing this train up, and I started to the north side of the shanty to watch this passenger train pass and I seen Hartman give what they call the wash-out sign or vicious stop sign, and then he started running toward the east end of the train. I looked down there and I could see Mr. Potterfield being rolled and cut up by this train."

Gilbert, one of the switching crew, above mentioned, testified along the same line, as follows:

"After shoving out of Eleventh Street about two or three car-lengths they give a stop sign, and the rear end of the train, that is, the east end of the train shoving east stopped just about the west end of this crossover switch here (indicating on photograph, plaintiff's Ex. B). About that time there was a C.B. & Q. passenger train approaching, coming west out of the hole here on this 72 track (indicating), I believe it is leading to the Union Station, and after the foreman, Hartman, give this stop sign, that is, he gave the stop sign after he seen the train approaching. Mr. Potterfield stepped around the end of this car here (indicating), east end of the car, and I might state that I was on down here at...