Rashall v. St. Louis, Iron Mountain & Southern Railway Co.
| Citation | 155 S.W. 426,249 Mo. 509 |
| Parties | HARRY RASHALL v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant |
| Decision Date | 08 April 1913 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. Henry L. McCune, Judge.
Reversed.
Martin L. Clardy, Edw. J. White and Martin Lyons for appellant Elijah Robinson of counsel.
(1) The plaintiff, under his own statement, was guilty of contributory negligence in attempting to cross the track directly in front of a moving locomotive approaching him in plain view. Loring v. Railroad, 128 Mo. 349; Moore v. Railroad, 176 Mo. 544; Hook v Railroad, 162 Mo. 569; Vanback v. Railroad, 171 Mo. 338. Plaintiff assumed the risk of injury from moving cars and engines in the defendant's railroad yard as a matter of law. Aerkfetz v. Humphrey, 145 U.S. 418; Loring v. Railroad, 128 Mo. 349. A railroad company was not required to block switch frogs at common law and the risk of injury from stepping into such open, obvious places as unblocked frogs, was assumed as a matter of law in Illinois. Railroad v. Crow, 155 Ill. 72; Railroad v. Massig, 50 Ill.App. 666; Railroad v Healey, 108 Ill.App. 531; Railroad v. O'Hara, 59 Ill.App. 649; Andeberg v. Railroad, 98 Ill.App. 207; Railroad v. Kithcart, 79 C. C. A. 150; Donogan v. Railroad, 165 F. 869. In States where the doctrine of assumed risk has not been emasculated, by the courts, as it has in Missouri, an employee is held to assume the risk of catching his foot in unblocked switch frogs as a matter of law. York v. Railroad, 86 Ark. 244; Railroad v. Higgins, 90 S.W. 200; Sheets v. Railroad, 139 Ind. 682; Railroad v. Healey, 108 Ill.App. 531; Donogan v. Railroad, 165 F. 869. Plaintiff's evidence wholly failed to show that the defendant's employees in charge of the engine which injured him, could have stopped the engine by the exercise of reasonable care on their part, after his perilous position was discovered, and for this reason, the demurrer should also have been sustained. Boyd v. Railroad, 105 Mo. 371; Tanner v. Railroad, 161 Mo. 497; Watson v. Railroad, 133 Mo. 250. (2) The court erred in giving instruction one on the part of the plaintiff. The first instruction given for the plaintiff, was erroneous in the following particulars: 1st -- It assumed that the plaintiff was in the due course of his employment at the time of his injury; 2nd -- It assumes that the employees in charge of the engine, by ordinary care, could have prevented the injury to plaintiff, after his danger was discovered, by means of the appliances at hand and, 3rd -- This instruction was also erroneous in submitting the legal proposition to the jury that the plaintiff would be entitled to recover unless he assumed the risk of being so injured. None of the instructions define the term of assumed risk but leave this question of law wholly to the jury to figure out.
Frank P. Walsh, E. R. Morrison and James P. Aylward for respondent.
(1) The decisions of the courts of Illinois were not put in evidence, hence this case is governed by the common law, which is presumed to be the same in Illinois as in Missouri, and the decisions of the Missouri courts control the case. Tennent v. Ins. Co., 133 Mo.App. 345; Leather Co. v. Ins. Co., 131 Mo.App. 701; McPike v. McPike, 111 Mo. 226; Jordan v. Pence, 123 Mo.App. 324; Houghtaling v. Ball, 19 Mo. 84; 6 Am. & Eng. Ency. Law (2 Ed.), 284; Express Co. v. Owens, 146 Ala. 412; Bank v. Bank, 128 N.Y. 26. (2) Plaintiff was not a fellow-servant of the employees of defendant in charge of the engine. Koerner v. Car Co., 209 Mo. 141; Lanning v. Railroad, 196 Mo. 647; Parker v. Railroad, 109 Mo. 362; Dixon v. Railroad, 109 Mo. 413; Schlereth v. Railroad, 115 Mo. 87; Nordhaus v. Railroad, 242 Ill. 166; Railroad v. O'Brien, 155 Ill. 630; Railroad v. Otstat, 113 Ill.App. 37; Railroad v. Wise, 206 Ill. 453; Railroad v. Kelly, 127 Ill. 637; Hartley v. Railroad, 197 Ill. 440; Lyons v. Rynerson & Son, 242 Ill. 409; Bennett v. Railroad, 243 Ill. 429; Railroad v. Moranda, 93 Ill. 302. (3) The question of assumption of risk of injury by being caught in the switch is not in the case because plaintiff based his right of recovery on the ground that after he was caught his peril was obvious and the engine could have been stopped by the exercise of ordinary care with the means and appliances at hand. Railroad v. Bender, 32 Tex. Civ. App. 568; Foster v. Railroad, 127 Iowa 84; Moore v. Transit Co., 193 Mo. 411; Cole v. Transit Co., 183 Mo. 81; Deweese v. Min. Co., 128 Mo. 423; Haworth v. Railroad, 94 Mo.App. 215. (4) The engine could have been stopped by the exercise of ordinary care after plaintiff's peril was apparent. (5) Plaintiff's instruction one is not erroneous. Brady v. Railroad, 206 Mo. 509; Jaffi v. Railroad, 205 Mo. 450; Moore v. Transit Co., 193 Mo. 411; Phippin v. Railroad, 196 Mo. 321; O'Connell v. Railroad, 106 Mo. 482.
STATEMENT BY THE COURT.
The plaintiff was employed as yard clerk at Bixby, Illinois where defendant's railroad yards contain eleven tracks connected by a "lead" with its main track, which is laid north and south at that station. The yard tracks are on the west side of the main track. On the 17th of July, 1907 plaintiff had been in the employ of defendant two months, his duties being when a north-bound freight train arrived to go on the yard tracks and check and record in a book the number and initials of each car of that train and then return to the office, which stood east of the main track, and get the proper waybills for that train, and from a comparison of them and the notations on his book to make out cards for each car, and to go back into the yards and affix these cards on the cars of that train, beginning at the north end and going south. Plaintiff testified that on the morning of said day after he had finished checking a few cars placed on the repair track, and while he was returning to the office he heard an incoming north-bound train; that he went to the office, got his book, checked and carded that train, after which he heard another "one pull in," whereupon he went again to the office, got his book and returned to the yards and checked this train, and then went to the office to make out proper cards, after which he went back in the yards and carded that last train; but found when he got to the south end that there was one car left over, so he went further south to look up that car and found it and carded it; that he did not remember on which one of the yard tracks this car stood, but knows it was on the west side of the main track at the south end, adding: That his intention was to go back to the office; that while following the footpath he heard a train which got ahead of him about two cars and slowed down; that he walked about twenty-five or thirty-five feet ahead of this train and then attempted to cross the track, when his foot caught right in the switch; that the train was moving about two miles an hour; that he waved his hands and "halloed to the fireman, and halloed and waved his hands." He also stated that it was a clear bright morning; that the engineer and fireman were at their places in the engine which came along and caught his left leg and left arm, throwing him back on his head; that the front part of the engine passed over and severed his two limbs; that his leg was cut entirely off and left in the switch, and his arm left hanging by a little bit of flesh; that he was taken to the office and from there to the hospital in East St. Louis, where amputations were performed the same morning; that he remained there about one month. At the time of the injury he wore a wide leather shoe, the whole of which was caught in the switch. The injury happened about eight feet and two inches in front of the switch board connecting the "lead" from the yard tracks to the main track. The engine of the train was at the time about fifty-two feet north of this switch stand and was drawing thirteen cars loaded with coal. The train was stopped when the plaintiff was between the engine proper and its tender. There was a footboard or platform at the front part of the engine. The plaintiff testifies that he seized this with his arms and tried to pull himself up at the moment the engine came upon him but could not detach his foot. He further testified that he had never ridden on this platform and that he did not throw the switch for this train. There was testimony tending to show that such a train moving at two miles an hour could have been stopped within ten feet. On cross-examination one of defendant's witnesses (Patton) said that, in reply to an inquiry from some one, the plaintiff at the time of the injury stated "that he did not try to get on the footboard but that his foot was caught." The defendant introduced a number of witnesses who testified that the plaintiff had ridden on the footboard attached to the pilot of this engine from the time the train left one of the yard tracks and was riding on the same when it stopped before entering the main track over the switch where the accident occurred; that when it stopped the plaintiff got off the footboard, went to the switch and threw it open so that the train could come on the main track, and walked back towards the approaching train, and was injured in endeavoring to get on the footboard of the engine by some slip or mishap; and also by a number of witnesses that after the accident occurred, and when the trainmen were getting the plaintiff from the place where he was injured, he stated h...
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