Roberson v. St. Louis Merchants Bridge Terminal Railway Company

• Decision Date: 06 May 1919
• Citation: 213 S.W. 873,201 Mo.App. 672
• Parties: MINA ROBERSON, Administratrix of the Estate of JOSEPH A. ROBERSON, Deceased, Respondent, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

213 S.W. 873

201 Mo.App. 672

MINA ROBERSON, Administratrix of the Estate of JOSEPH A. ROBERSON, Deceased, Respondent, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 6, 1919

Appeal from the Circuit Court of the City of St. Louis.--Hon. Rhodes E. Cave, Judge.

AFFIRMED.

Judgment affirmed.

J. L Howell and W. M. Hezel for appellant.

The court erred in refusing to give the instruction in the nature of a demurrer to the evidence as requested by the defendant. (a) Because the plaintiff failed to prove that her decedent was, at the time he was injured, engaged in interstate commerce. Ill. C. Railroad Co. v. Behrens, 233 U.S 473; Erie R. Co. v. Welsh, 242 U.S. 303. (b) Because under the Federal Employers' Liability Act the decedent assumed the risk of passing between the cars at the time and under the existing circumstances. Boldt v. Railroad, 245 U.S. 441; Baugham v. Railroad, 241 U.S. 237; Jacobs v. Railroad, 241 U.S. 229; Slavin v Toledo, St. L. & W. Ry. Co., 236 U.S. 454; Seaboard Air Line v. Horton, 233 U.S. 492; Southern Ry. Co. v. Gray, 241 U.S. 333; Railroad v. Harris, 247 U.S. 367.

J. C. Sheppard, Arnot L. Sheppard, and Ernest A. Green for respondent.

The appellant's demurrer to the evidence was properly overruled by the trial court, and the judgment herein should be affirmed. (a) There was abundant testimony in the record justifying the jury in finding that the deceased was engaged in interstate commerce at the time he received the injuries resulting in his death. Pittsburgh, C. C. & St. L. Ry. Co. v. Glinn, 219 F. 148; N.Y. Central & Hudson River R. R. Co. v. Carr, 238 U.S. 260; Southern P. Co. v. Vaughn, 165 S.W. 888; Oberlin v. Oregon-Washington R. & Navigation Co., 142 P. 555; Pedersen v. Del., Lack & West. R. R. 229 U.S. 146; Erie Railroad v. Welsh, 242 U.S. 306; Grand Trunk Ry. Co. v. Knapp, 233 F. 950; Louisville, etc., Railroad Co. v. Parker, U. S. Adv. Ops. 1916, p. 4; Delaware & Hudson Co. v. Katz, 233 F. 33; Chicago, K. & S. Ry. Co. v. Kindlesparker, 234 F. 1; Erie Railroad Co. v. Winfield, 244 U.S. 170; Erie R. Co. v. Krysienski, 238 F. 145; Young v. Lusk, 268 Mo. 631. (b) Under the rule as declared by the Missouri courts (which must govern herein) there was no assumption of risk whatever in this case. Fish v. Railroad, 263 Mo. 124; Young v. Lusk, 268 Mo. 640; Williams v. Pryer, 272 Mo. 622; Cross v. C., B. & Q. R. R. Co., 191 Mo.App. 210; Holloway v. M., K. & T. Ry. Co., 208 S.W. 30 (Advanced Sheets, Feb. 19, 1919). (c) Even under the law as declared by the Federal courts, there was no assumption of risk, and, in any event, whether or not the deceased assumed the risk was a question of fact to be determined by the jury; and the trial court did not err in refusing to declare, as a matter of law, that he did assume the risk. Railroad Co. v. Wright, 235 U.S. 376; Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 F. 1; Chesapeake & Ohio Railroad Co. v. Proffitt, 241 U.S. 462; Choctaw, etc., Railroad Co. v. McDade, 191 U.S. 68; Schlemmer v. Buffalo, etc., Railroad Co., 220 U.S. 590; Texas & Pacific Ry. Co. v. Harvey, 228 U.S. 319; Gila Valley Ry. Co. v. Hall, 232 U.S. 94.

ALLEN, J. Reynolds, P. J., and Becker, J., concur.

OPINION

ALLEN, J.

This is an action prosecuted under the Federal Employers' Liability Act by the administratrix of the estate of Joseph A. Roberson, deceased, who is the widow of the deceased, to recover, for the benefit of said widow and a minor child of Joseph A. Roberson, damages for his death, alleged to have been caused by the negligence of the agents and servants of the defendant while the deceased was in the performance of his duties as a switchman in the employ of defendant and while engaged in interstate commerce. There was a verdict and judgment for plaintiff below in the sum of $ 6000--$ 2500 for the benefit of the widow and $ 3500 for the benefit of the minor child. From this judgment the defendant prosecutes the appeal before us.

The record discloses that Roberson received his fatal injuries on December 25, 1914, at about 3:45 A. M., while engaged as a switchman for defendant in its "Bremen Avenue Yard" in the city of St. Louis, this being a "classification yard," i. e. one used for "breaking up" a train or "drag" of freight cars and distributing the cars on various tracks in order to properly group them for delivery to various railroads or to their respective points of destination. This yard contained a main or "lead" track extending north and south, from which other tracks branched off curving slightly and then extending parallel with the lead track; and, it seems, from the tracks thus branching off from the lead track, or from some of them, other tracks in like manner branched off, also becoming parallel with the lead track. The tracks thus branching off extended south, and were entered from the north where they converged. We are particularly concerned with tracks designated as No. 7 and No. 8. These two tracks were west of the lead track. It appears that track No. 7 branched off from the lead track, and that track No. 8, lying west of No. 7, branched off from the latter, extending at first in a slight curve and then becoming parallel with the other tracks.

Roberson, when injured, was a member of a switching crew engaged, during the night, in breaking up a freight train in this yard and distributing the cars to these various tracks. The crew, aside from the engineer and fireman, was composed of one Teas, the foreman of the switching crew, one Greeno, a field switchman, and Roberson who was switchman "following the engine." It was Roberson's duty "to cut the cars when the foreman told him how many cars he wanted in each cut." It was not his duty "to locate the clearance of the cars," but that of the field switchman. The train which this crew was thus breaking up had been brought to this yard from the defendant's "Twenty-third Street Yard," and originally contained forty-one cars. The greater part of these had been distributed upon tracks of the Bremen Avenue yard prior to the casualty. Some time prior to Roberson's injury, perhaps thirty or forty minutes prior thereto, this crew had "kicked in" a Missouri Pacific car on track No. 7. This car was not put in on track No. 7 far enough to afford a safe operating clearance between it and cars which might be moved on track No. 8. The evidence tends to show that just prior to the time when Roberson was injured the engine was attached to the north end of a string or "drag" of twelve cars on the lead track. The foreman desired to place the two cars at the south end of this drag on track No. 8 and to push back the cars standing upon that track a sufficient distance to allow space for two additional cars thereon. As these cars were moved south on the lead track, Roberson was told by the foreman to make room on track No. 8 for two additional cars, and he thereupon walked south, on the east side of the moving cars, passed between the latter and the Missouri Pacific car standing on track No. 7, and proceeded on south between track No. 7 and track No. 8. It appears that as he passed the north end of the car on track No. 7, he was at or near the north end of the second car from the south end of this drag, i. e. at "the end of his cut," it being the intention to cut off these two last cars. He carried a lantern, and his movements were observed by the field switchman and partly by the foreman. When the cars had been moved south a sufficient distance on track No. 8, they were stopped in response to a signal given by Roberson who then "cut the coupling," cutting off the two cars to be left on track No. 8, and gave a "go ahead signal." Thereupon the cars remaining in this drag began to move north. As these cars moved out of track No. 8 Roberson walked north beside them between the two converging tracks. As he passed the end of the car standing on track No. 7 he was caught between the northwest corner of that car and the last car at the end of the drag and badly crushed. He died about an hour later. It appears that he was caught between the corner of the car on track No. 7 and the middle of the last car in the drag; and that this occurred by reason of the fact that, owing to the curvature of the track, the middle part of a passing car on track 8 swung out farther east than the ends thereof. The witness Greeno said: "When he (Roberson) was walking in he was walking alongside, about the end of the car; that is, the same car he walked out with. He walked in that way all right and walked past the car on No. 7 about two car lengths. . . . He came out just as he came in, except that he walked in the middle of the car and was walking out towards where the tracks met."

In this connection the witness Teas testified: "The cars are closer in coming out off a curb than in going in, because in coming out you are pulling off of the curb and the other way you are shoving against it. The difference in clearance would depend on how loose the cars are on the frame. The difference would not be a great deal, but it makes enough difference that several times I have been caught, in my experience, getting into a place and couldn't get out."

The case was submitted upon the evidence adduced by plaintiff, defendant offering none. Further reference will be made to certain portions of the evidence in the course of the opinion. The instructions need not be noticed, since the only point made on appeal is that the trial court erred in overruling a demurrer to the evidence interposed by defendant.

Two reasons are assigned by defendant's learned counsel in support of the insistence that the trial court erred in refusing to peremptorily direct a verdict for defendant. The first of these is "that the...