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

• Decision Date: 15 November 1926
• Docket Number: No. 25140.,25140.
• Citation: 289 S.W. 913
• Parties: ROSE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

289 S.W. 913

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

No. 25140.

Supreme Court of Missouri, Division No. 1.

November 15, 1926.

Motion for Rehearing Denied January 13, 1927.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Hugh Rose against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

E. T. Miller, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

T. R. R. Ely and Tom Ely, Jr., both of Kennett, for respondent.

ATWOOD, J.

This is an appeal from a judgment for $12,000 for personal injuries which necessitated the amputation of plaintiff's right arm between the elbow and shoulder.

Plaintiff went to trial on his amended petition which, in addition to the usual formal averments, alleged his employment by defendant on October 4, 1921, at the joint station maintained and operated by the St. Louis Southwestern Railway Company, the Paragould & Southeastern Railway Company, and this defendant, at Arbyrd, Mo.; that as such employee it was his duty to make out switching lists and deliver same to the conductor or other agents in charge of defendant's trains; that on said date on the arrival of defendant's north-bound local freight train No. 856 at Arbyrd, plaintiff delivered a switching list to defendant and defendant's agents, servants, and employees which required the spotting or setting of a box car at a cotton gin platform on a wye or connecting track; that plaintiff had been permitted, requested, ordered, and was accustomed for more than two years previous to assist defendant's agents, servants, and employees in handling freight and switching lists, and, on numerous occasions, at their request, had assisted in switching and coupling cars and doing such things as a brakeman usually does; that plaintiff was in the usual and proper course of his employment at the time he delivered said switching list; that on account of a certain car then standing at or near said cotton gin platform it became necessary to couple into and remove the same, in order to properly set the box car called for on said switching list; that the engine had a train of six or seven cars attached to it and was under the control and management of defendant's engineer, fireman, conductor, and two brakemen who started and commenced the spotting or setting of the car in question; that one of defendant's said brakemen requested plaintiff to assist in the switching of the box car in question and in the coupling of the rear car attached to said train of cars to said car standing at or near said cotton gin platform; that in obedience to the order, request, direction, and signal of said brakeman plaintiff commenced to assist in said switching, going to the particular stationary car, as directed by said brakeman, and undertaking to prepare the coupler thereto attached, said train standing still at the time and leaving a distance of 12 to 18 inches between the unattached car and the car next to it; that while plaintiff was so engaged in preparing said coupler under the order and direction of said brakeman he was in a place of peril; that defendant and its said brakeman, agents, servants, and employees operating said train, knowing that plaintiff was preparing said coupler on said unattached and standing car and in a place of great peril, and after they could have known it by the exercise of ordinary care, negligently and carelessly and without any warning whatever to plaintiff, and with great and unusual force, backed said engine and train of cars and ran same against said unattached car on which said plaintiff was working, under the order, signal, and direction of defendant, by reason of which plaintiff's body and arm were caught between said engine and train of cars moving backward and said unattached car, and his right arm was badly bruised, mangled, and broken so that it became necessary to have the same amputated between his elbow and shoulder, and his body was greatly bruised; that plaintiff was performing the work of assisting the second brakeman, under the orders, directions, and signals of defendant's agent, servant, and employee and defendant's brakeman; that he was doing the work as he was ordered to do and as he had been accustomed to do in the usual and ordinary way; that he was at the place he was ordered to be by defendant's servants, agents, and employees, and was preparing the coupler in the ordinary and careful manner, and was at a place usual for one to be in preparing a coupler in order that two cars might be attached. "

Defendant's answer, after admitting the formal allegations of plaintiff's petition, denied that it was any part of plaintiff's duty to work around or about the switching of the cars at Arbyrd, as alleged in plaintiff's petition; denied that it was any part of plaintiff's duty to assist the brakeman in making connections, or to see that the couplings were made, or to cut loose or spot cars; denied that the brakeman had any authority to direct plaintiff to do any such work; and alleged the facts to be that, if plaintiff undertook to do the matters and things alleged in his petition in coupling the cars, or if plaintiff undertook to receive directions from a brakeman, such was outside of his employment and a wholly voluntary act and done without any authority from defendant or any person authorized by it, and if plaintiff had been doing said work or assisting in coupling cars and spotting cars, as alleged in his petition, it was without the knowledge or consent of defendant, and that defendant's brakeman had no authority to direct or instruct plaintiff to do said work so alleged in the petition, and that, if plaintiff undertook to do the same, it was outside of his employment and a wholly voluntary act on his part for which defendant is not liable. Defendant further pleaded plaintiff's contributory negligence.

Plaintiff's reply was in the nature of a general denial.

I. Appellant's first and second assignments of error are that the trial court erred in refusing defendant's peremptory instruction offered at the close of plaintiff's case and again at the close of the whole case. The case was submitted solely under the humanitarian rule. In support of these assignments of error, appellant says that:

"The evidence most favorable to the plaintiff shows that, from the positron of brakeman, Crass, the latter could not see plaintiff when he started to couple the cars after he reached a point as close as three feet to the car; and that, ordinarily, the coupling was effected without going between the cars by means of a safety appliance device which could ordinarily be operated without going between the cars."

Defendant's main track at Arbyrd ran north and south, and the main track of the St. Louis Southwestern Railway Company ran east and west, these two main tracks being connected by a wye or connecting track extending in a southwesterly direction from a point on defendant's main track north of the station, jointly maintained at the intersection of said two main tracks, to a point on the main track of the St. Louis Southwestern Railway Company west of said station. According to plaintiff's testimony, defendant's north-bound local freight train reached Arbyrd about 3:24 in the afternon of October 4, 1921. It carried a full crew consisting of a conductor, engineer, fireman, and two brakemen. When the train stopped, plaintiff handed defendant's conductor a switch list which the conductor handed to Bill Crass, the hind brakeman. The switch list directed that a car be spotted at the seed house of the Arbyrd Gin Company, another at the cotton platform, and the last car on the transfer or connecting track was to be picked up. Two cotton gins and two cotton platforms, besides other buildings, were located along the wye or transfer track, and, after delivering the switch list, plaintiff went over to the transfer track to see that the cars were spotted as directed. When plaintiff got to the cotton platform, Mr. Hancock, who was manager of the Arbyrd Gin Company, asked him to be sure and have the car spotted because it had been knocked off the spot for three days. In order to hear Mr. Hancock plaintiff had climbed on top of a box car in the switch train then moving slowly south over the transfer track. After communicating this request to Crass, plaintiff climbed off of the box car and walked east 12 or 15 feet away from the transfer track, where he was standing looking at the train when defendant's brakeman. Bill Crass, attracted his attention by a call or whistle. Plaintiff testified on this point as follows:

"He hollered at me and gave me a couple-up signal and I turned — he was looking right direct at me — and I turned and walked back to the next car and started to make a coupling, and pulled up on the pin and it wouldn't lift, and I jerked on it three or four times and it wouldn't lift up, and the cars was standing 12 or 14, or maybe 18, inches apart; anyhow, they were not far enough to undertake to walk between them, and I put one hand on each coupling, and sprang over between them, and reached in and got the pin with my left hand, and reached for the knuckle with my right, and the cars came together on me. * * * Crass was on top of a box car when he gave me this couple-up signal. I was something like a car and a half or two car lengths from him; and he was in plain view of me; facing right towards me. I couldn't see any one connected with the railroad beyond me from where I was located. There was supposed to be; I don't know whether there was or not, I couldn't say. The other brakeman was supposed to be between him and the engine. The engine was northeast from me; the car he gave me the signal to couple up was about a car length southwest of where I was standing. There was no other employee of the railroad down in that direction. There was no other person down that way at all, no one out...