Rogers v. Thompson, 43129

Decision Date08 March 1954
Docket NumberNo. 43129,43129
Citation364 Mo. 605,265 S.W.2d 282
PartiesROGERS v. THOMPSON.
CourtMissouri Supreme Court

Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Kansas City, for appellant.

S. L. Trusty and Guy W. Green, Kansas City, for respondent.

BOHLING, Commissioner.

J. Boyd Rogers recovered a judgment for $35,000 (after a remittitur of $15,000 on the overruling of the motion for new trial) against Guy A. Thompson, Trustee for Missouri Pacific Railroad Company, a corporation, under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. Mere contributory negligence diminishes the damages but does not bar a recovery under the Act. Sec. 53. The issues presented involve questions respecting the evidence, the instructions, the argument and the amount of the judgment. A statement of the facts in some detail is proper.

Defendant operates interstate trains between St. Louis and Kansas City. It is a single track railroad west of Jefferson City and is operated under train orders and block signals. Plaintiff was the conductor on defendant's westbound train No. 2d 9 when 2d 9 ran into and telescoped the rear Pullman of No. 1st 9 about 7:45 a. m. January 1, 1948, approximately two miles west of Syracuse, Missouri, killing a number of passengers and injuring others. Plaintiff was also injured.

Number 1st 9 was a regularly scheduled passenger train from St. Louis to Kansas City. Number 2d 9 carried only mail, express and baggage. Its crew included Engineer Butler, Fireman Parks, Flagman Journey, a porter and plaintiff, the conductor. It had eight cars, the rear car being a coach, a converted Pullman, for the conductor, porter and flagman to ride.

Plaintiff had worked for defendant about 29 years, the last five as a conductor, and was thoroughly familiar with the railroad between St. Louis and Kansas City.

Second 9 left St. Louis about thirty minutes after 1st 9, and arrived at Jefferson City a little after 3:00 a. m., January 1, 1948, about ten minutes after 1st 9 had departed. At Jefferson City 2d 9 was held fifty-three minutes for signalmen. Plaintiff testified the dispatcher told him they were having trouble with the block signals to the west, but did not say where, or the nature of the trouble. Also: 'Q. Did he describe the trouble? A. He said the block signals was out.' In connection with an investigation as to the cause of the wreck conducted by the Interstate Commerce Commission plaintiff stated that, when he asked if he had to flag all the blocks he heard were out up there, the dispatcher answered the would try to advise plaintiff at California, and that he, plaintiff, understood all communications were out. The signalmen did not show up and the dispatcher told plaintiff to proceed.

A severe storm had disrupted defendant's block signal and communication systems west of Jefferson City. Plaintiff testified that it had been and was raining and freezing at Jefferson City; that the ground was covered with a sheet of ice when 2d 9 arrived at California; that it was snowing pretty hard at Tipton, but he did not know whether it was snow, or snow and sleet; that the visibility toward the front of the train seemed to be obstructed, but he did not know whether it was the weather, or the steam, or both; that something like sleet was hitting his face; that he could not see out; that he could see the poles along the track only now and then; that the bad weather increased as 2d 9 proceeded west; that the weather 'was just about as had as it could get'; and that only the snow and sleet would interfere with the vision of the enginemen.

Defendant has train order board signals, located on poles at stations to stop passing trains for train orders, and block signals, known as 'home' blocks, 'absolute' or 'A' blocks, and 'intermediate' block signals.

At each end of every siding is a block signal. The 'home' signal is the one encountered upon approaching a siding or town. The 'absolute' or 'A' signal is the one encountered as the train leaves a siding or town. It has a letter 'A' on top of it. The 'intermediate' signals are located between stations.

A green light permits of the allowable speed ahead for the train. A red light means 'stop.' It indicates that a train is in the block, or something is wrong with the track or signal wires. A red light on a 'home' or an 'intermediate' signal requires a stop and then permits the train to proceed at restricted speed on the main track or onto a siding. Telephones are installed at the 'A' signals. A red light at an 'A' signal requires a stop and telephoning to secure a clearance under Rule 509 and proceeding under Rule 509 at low speed, not over 15 miles per hour, and if a clearance cannot be secured to send a flagman out a sufficient distance ahead to protect the train until the next clear signal is reached. Thains on sidings do not affect the block signals.

Many of defendant's operating rules were offered in evidence by the parties. There is no controversy over their wording. We quote or state the substance of the rules considered material.

Under Rules 35 and 99 the flagman is to protect a train, which has stopped or is moving in circumstances where it may be overtaken, by torpedoes and lighted fusees.

Rule 101(c): '* * * When indications of severe storms, high water, fire or any condition which threatens damage, trains must proceed at restricted speed, and if in doubt as to being able to proceed safely, train must be placed on siding and remain there until it is safe to proceed.

'Conductors and enginemen must make careful inquiries at all stopping places, and when thought advisable make extra stops to ascertain the extent and severity of storms * * *.'

Rule 106: 'Both the conductor and the engineman are responsible for the safety of the train and the observance of the rules * * *.' Rule 108: 'In case of doubt or uncertainty the safe course must be taken.'

Rule 509: 'When a train or engine is stopped by a Stop-indication, it must stay until authorized to proceed. Upon information from the train dispatcher (or signalman or instructions of train dispatcher) that there is no opposing train in the block, it may, after filling out clearance, when required, proceed at low speed, expecting to find a train in the block, broken rail, obstruction or switch not properly set, to the next signal displaying a Proceed indication. * * *

'If the means of communication fails, or if the train dispatcher or signalman does not know that there is no opposing train movement involved, the train or engine may proceed when preceded by a flagman to the next signal displaying a Proceed or Proceed at low speed indication.

'The requirements of this rule must be repeated at each Stop-indication.'

Rule 881: 'The general direction and government of a train is vested in the conductor, and all persons employed on the train must obey his instructions.' In case of doubt as to the safety of proceeding, 'he must consult the engineman and be equally responsible with him for the safety and proper handling of the train * * *. He must be vigilant and cautious, not trusting alone to signal or rules for safety. He must require the flagman and other trainmen to observe position of train order signals. * * *'

Rule 884: 'Conductors must see that subordinates are familiar with their duties, * * * instruct them, if necessary, in the proper performance of their work, and caution them as to its risks. * * *'

Rule 885: 'Conductors must not allow their duties to interfere with the proper protection of their train and must require their flagmen to act promptly and in accordance with the rules. * * *'

Rule 889: 'Train men must know by speed of train * * * that train is being handled safely and under control, and, when necessary, take immediate action to get train under safe control'.

Rule 956 makes the enginemen 'jointly responsible with the conductor for the safety of the train and proper observance of the rules * * *.' Under Rule 963 enginemen must, and firemen when practicable will, maintain a vigilant lookout and carefully note all signals et cetera.

The terms 'restricted speed' and 'low speed' mean a speed not in excess of 15 miles an hour and permitting of a stop short of any obstruction.

Second 9 left Jefferson City under orders to meet and met 1st 70 at Scott, No. 10 at McGirk, and No. 20 at California.

The 'order board' was red for 2d 9 at California; and the station operator gave plaintiff and the engineer each a 'message' from the chief dispatcher reading: 'After you meet No. 20 at California and Second 70 Eng. 2009 at Clarksburg there is no opposing train in block between Clarksburg and M.K.T. crossing.' The M.K.T. crossing is about a mile east of Sedalia.

Plaintiff testified that the message meant that there was no east-bound train coming toward 2d 9 and gave no 'right to run a signal,' or violate any rule, or Rule 509; that the control of the train is in the conductor; that his engineer asked him at California 'how I understood the message'; that 'I told him it meant just what it said, and nothing else, 'no opposing trains in the block between Clarksburg and M.K.T. crossing''; that he told his engineer 'to live up to the rules', and that he did not instruct the engineer 'to run at restricted speed' because: 'Why, no, I didn't know there was anything going on'; that the conductor can communicate with the engineer and can slacken the speed or stop the train without the assistance of the engineer; that he did neither; that the 'A' block signal at Clarksburg was green, and that he could not see any block signals after Clarksburg.

Upon leaving Clarksburg 2d 9 proceeded through Tipton, Dow (a siding), Syracuse and to the scene of the collision without stopping, a distance of about 13 miles. Plaintiff's witness Parks put its speed at 30 to 40 miles an hour. Plaintiff testified that he could not see out and did not know its speed, but 'I knew where I was at.' He did estimate the...

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