Reed v. Terminal R. Ass'n of St. Louis

• Citation: 62 S.W.2d 747
• Decision Date: 12 June 1933
• Docket Number: No. 31154.,31154.
• Parties: REED v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: United States State Supreme Court of Missouri

62 S.W.2d 747

REED v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 31154.

Supreme Court of Missouri, Division No. 1.

June 12, 1933.

Rehearing Overruled August 3, 1933.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Charles Reed against the Terminal Railroad Association of St. Louis. From a judgment for plaintiff, defendant appeals.

Affirmed on condition.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

Louis E. Miller and John F. Gibbons, both of St. Louis, for respondent.

ATWOOD, Judge.

This is an action, conceded to have been properly brought under the Federal Employers' Liability Act (45 USCA §§ 51-59), to recover damages for injuries alleged to have been sustained by plaintiff while in defendant's employ. The trial resulted in a verdict of $30,000 for plaintiff, and, from the judgment entered thereon, the defendant prosecutes this appeal. The errors complained of relate to the refusal of certain instructions, the giving of another, and the size of the verdict.

The record discloses that at the time the injuries in question were sustained plaintiff was employed by defendant as an air couple up man in its east-bound yard in the city of East St. Louis, Ill. In connection with his work of coupling up the air hose, it was also his duty to look out for and report defective cars. His working hours were from 11 p. m. to 7 a. m. When plaintiff was assigned to this work he was advised by the general car foreman that he would "be working for the yardmaster." This yard contained switch tracks which were numbered from 17 to 29. Track 28 was known as the M. & O. delivery track, and track 25 was known as the I. C. delivery track. Plaintiff's evidence showed that about 12:20 a. m. on April 26, 1929, he was advised by the yardmaster that tracks 28 and 25 would be the next delivery and he was directed to work them, receiving the yardmaster's assurance that he would look out for him. Plaintiff testified that he replied, "All right, Walter," and proceeded to work track 28 from the south to the north end; that the cars were not all close enough together to couple up the air hose, but in accordance with the usual custom he proceeded to inspect for cars in bad order so as to avoid delay. Track 28 would hold about 33 to 35 cars, and track 25 about 40 cars. Plaintiff was equipped with a kerosene white light and a pad of repair cards upon which reports were made to the general foreman of any defects noted by him. It appeared that in an inspection of this kind it was necessary "to reach beneath the cars" and "get between them in making an inspection," and that "when a car is setting very low you have to go between them to see the brake rigging," and when one was in that position he could not see out to both ends of the tracks as the view was cut off.

After finishing track 28 plaintiff proceeded to work track 25 from the north end toward the south, upon which there were some 15 or 20 cars. Plaintiff testified that, while he was inspecting the brake beams on the next to the last car on the south end of track 25, "all of a sudden a drag was shoved from the eastbound end with a strong—what we call a hard blow of the cars—cars striking hard, knocking me down catching this left foot under the wheel. I scrambled around and managed to shove myself out or the wheel would have run right up my leg. The truck struck me in the back." As a result of the impact plaintiff's left foot was mashed off and he received other injuries. There had been no movement at all on this track up to this time, nor had there been any cars switched in from either end of these tracks, nor had plaintiff received any signal of any sort that there was to be a movement of cars upon track No. 25. There was testimony that when one was working under a car in the position which the plaintiff was in he would be notified of a movement by a member of the crew whose duty it was to go down the track "before they shove in and see that everything is in the clear."

The negligence pleaded was that defendant failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, in the following particulars, to wit: That it carelessly and negligently failed to give plaintiff any signal or warning of its intention to switch said string of cars into and against the car upon which plaintiff was working; failed to take any notice of the presence of plaintiff who was then and there working upon said car; that it carelessly and negligently caused and permitted said string of cars to be pushed into and against said car upon which plaintiff was working before plaintiff had been allowed a reasonable opportunity to retreat to a place of safety; and that defendant knew, or by the exercise of due care on its part could and should have known, that to switch said string of cars into and against said car upon which plaintiff was working, without warning him of its intention so to do and without affording him an opportunity to retreat to a place of safety, was likely to cause plaintiff to be injured as aforesaid.

Defendant's answer contained a general denial, plea of assumption of risk, and allegations that plaintiff's injury, if any, was caused by his own negligence in going between cars while switching was being done on both ends of the track "without notifying defendants' employees in charge of the switching operations of his intention to go between said cars, and to his negligence in failing to display a blue signal on the end of each end car of the string of cars located on the track on which he was working, as required by rule 26 of the operating rules of the defendants."

Plaintiff's reply was a general denial coupled with an allegation that observance of the blue signal rule had been waived by defendant.

Appellant first insists that its requested instruction in the nature of a demurrer to the evidence should have been given. The reasons assigned rest mainly on the assumption that the blue signal rule was in force. This assumption cannot be indulged, because there was substantial evidence that this rule had not been observed for years, and that the use of such signals had on occasion even been forbidden as delaying switching operations.

In Hoch v. St. Louis-San Francisco Railway Co., 315 Mo. 1199, 287 S. W. 1047, cited by appellant, the injured employee was charged with the duty of making light repairs as well as inspecting and coupling up air hose. He was apparently engaged in making such repairs on a car standing on the assembly track when he was struck as the result of some cars being shunted on that track without warning. There was abundant proof of a strict enforcement of the blue signal rule and very little evidence of its nonobservance. Furthermore, there was no evidence that he had asked or received assurance of protection from any one while engaged in this duty, or that any other employee had actual knowledge that he was then so engaged. The leading facts sustaining a finding of nonliability there do not appear in this case.

Appellant also relies upon Flannery v. New York, O. & W. Railroad Co. (C. C. A.) 29 F.(2d) 18, but the controlling facts in that case are unlike those now before us. Plaintiff there was directed to repair a freight car standing at one end of a string of cars. Apparently the blue signal rule was in full force and generally observed because plaintiff testified that he had asked his supervisor to place a blue flag on the other end of the string of cars for him, but did not wait before going under the car to ascertain that the flag was so placed,...