Rittenhouse v. St. Louis-San Francisco Ry. Co.

• Decision Date: 09 April 1923
• Docket Number: No. 23249.,23249.
• Citation: 252 S.W. 945,299 Mo. 199
• Parties: RITTENHOUSE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

252 S.W. 945

299 Mo. 199

RITTENHOUSE v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 23249.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Rehearing Denied June 11, 1923.

Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.

Action by Etta Rittenhouse, administratrix of the estate of H. A. Rittenhouse, deceased, against the St. Louis-San Francisco Railway Company. From an order sustaining a motion to set aside a nonsuit, defendant appeals. Reversed and remanded; with directions.

W. F. Evans, of St. Louis, and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, for respondent.

Statement.

DAVIS, C.

This suit, an action for negligence by the administratrix of deceased for his wrongful death, was instituted in the circuit court of Lawrence county on the 10th day of June, 1920. A trial was had in which both plaintiff and defendant submitted evidence. At the conclusion of the whole evidence the court indicated that it would give an instruction in the nature of a demurrer to the evidence, when plaintiff took an involuntary nonsuit with leave to move to set the same aside. Thereupon plaintiff filed a motion to set the nonsuit aside, which the court sustained, and defendant appeals.

The petition alleges that the deceased had undertaken to inspect and fix an automatic coupler on one of the freight cars, which was going into a train that defendant's switch crew was at that time making up. The pin of the coupler had been pushed too high during the switching operation, and as a result thereof the coupler failed to couple automatically by impact; that, while the deceased was between the end of two cars, the switching crew caused a third car to be run down against the cars where the deceased was causing them to move, and injured him.

The petition contains two assignments of negligence: The first, that defendant failed to keep and maintain the coupler and appurtenances thereto in safe condition, so that they would couple by impact without the necessity of employees going between the cars, as provided by the Safety Appliance Act of Congress (U. S. Comp. St. § 8605 et seq.); second that the members of the switching crew negligently shoved the cars against deceased, when they knew, or by the exercise of ordinary care on their part could have known, that he was at that time engaged in inspecting and going over said train, and was between two of said cars.

The answer contained, first, a general denial; second, that deceased's injuries and death were due solely to a violation of what is known as the "blue flag rule," which required car inspectors and repairers, when working under or about cars, to place a blue flag by day or a blue light by night on the track, or at the end of a car, to denote that workmen are at work on or about said car; third, that the injuries and death of the deceased was the result of his own negligence and assumption of risk in going between the two cars, which were at that time being switched and moved in the making up of a freight train, without notice to or knowledge on the part of those in charge of the movement of said cars.

Plaintiff's reply was a general denial, an allegation that the blue flag rule had been abrogated and abandoned by long-continued and habitual nonobservance by the employees with the knowledge and consent of defendant, that deceased's death was directly caused by defendant's failure to comply with the Safety Appliance Laws of Congress by failure to keep and maintain couplers in repair, and by specific denials that deceased was guilty of contributory negligence, or that he assumed risks, and that contributory negligence and assumption of risk constitute no defense.

The railroad yards at Monett, Mo., the east and the west, are made up of switch tracks, which run in a general easterly and westerly direction. On the night of June 14, 1920, about 10:45 p. m., the switch crew, under the foreman, was assembling a freight train for points in Oklahoma and Texas. In furtherance of expeditious transportation, cars to the nearest points were to be placed next to the engine, and those to the more distant points to the rear of the train; and to so assemble the cars it became convenient to place them, temporarily, on certain switch tracks. With that purpose in view three cars, to wit, cars C. H. & D. 46723, 0. S. L. 9417, and St. L.-S. F. 31623. billed to Dallas, Tex., Beggs, Oki., and Dallas, Tex., respectively, and hereinafter known as the first, second, and third car, were in the above order one following the other at short intervals, kicked, shunted, or drifted to position on track No. 10. As the first car drifted to position, Switchman Williams shouted to Acting Foreman Wright, loud enough for deceased to have heard him if in the vicinity, "The knuckle pin is out there, Shorty; I have pulled it too high; fix it, or have Wallace [a car inspector] fix it." Acting Foreman Wright, about 1½ car lengths away, observed the lock as the car drifted by, and saw that the pin was pushed up past the knuckle so that it would not couple automatically. As the car passed him he grabbed and shook the lever, expecting the pin to drop in place? but it failed to do so. In about two minutes the second car was kicked in, and struck the first car. Both cars, bumping together, then drifted to a stationary position, the second car in juxtaposition with the first car. Wright could not see whether the two cars coupled or not. Immediately thereafter the third car was kicked in on track No. 10, drifting toward the other two cars, the distance of about a car and a half. Wright heard the crash, and almost immediately thereafter he heard a switchman say, "We have killed a car man!" Going to the immediate scene of the accident, he found the lantern and wrench of deceased about 1½ car lengths from where the deceased (a car inspector and repairer) was lying between the rails, then unconscious. He died in about 15 minutes. Just after the accident the couplers were close together, the second knuckle pin was closed, the knuckles were shut, the cars were not coupled, and the pin was hoisted out of place. From the time the first car went by Wright until after the accident the knuckles had not changed position. The coupler failed to couple automatically, by impact, because it was out of its proper place. The deceased, with other car inspectors, performed light work in the yards, such as fixing brake chains, operating levers, taking off brake chains, and such as that, without the car going to the "rip" (repair) track. Neither the foreman nor any other employee had seen the deceased for an hour and a half, nor did they know that he or any other car inspector or repairer was around, or that he had heard Williams' call to Wright.

Relative to the inspection of the train and light repair work, it was the duty of the foreman to call, if necessary, the car inspector. The record is void of any evidence that a car inspector or repairer, was called to fix the coupler. The evidence tended to show that the coupling pin on the first car had worn, so that when pulled too high it failed to fall in place, and the coupler refused to couple by impact. The train was in the process of being assembled, and was not ready for inspection.

Switch Foreman Wright, plaintiff's witness, testified:

"I had requested no car man to come and fix that (the coupler). I had not seen a car man around any of those tracks for an hour and a half or two hours before the accident."

Plaintiff's witness Switchman Donlady testified that if he could not fix the knuckle pin out of position he would get the car repairer to do it, and anything he could not fix he would go and get them; that he never saw a car repairer adjust a knuckle, only when he called them to come out and do it. Both Wright and Donlady testified, in substance, that when a car inspector went in to inspect or repair a car he would give the engineer a stop sign or signal, and tell him that he was working in there. The evidence tends to show that when deceased entered the employment of defendant he was given a copy of the "blue flag rule," and receipted for it on another copy. The rule provides in part:

"That a blue flag by day and a blue light by night, placed on a track or at the end of a car, engine, or train, denotes that workmen are at work under or about the car, engine or train, and that employees must not work at such places unless such blue signal is so placed. A car, engine or train thus protected must not be coupled to or moved, until the blue signal is removed by the person who placed it."

The record is void of any...