Sacre v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Decision Date: 07 March 1924
• Docket Number: No. 23951.,23951.
• Citation: 260 S.W. 85
• Parties: SACRE v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Supreme Court

260 S.W. 85

SACRE v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

No. 23951.

Supreme Court of Missouri, Division No. 1.

March 7, 1924.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Edgar J. Sacre against the St. Louis Merchants' Bridge Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Howell and W. M. Hezel, both of St. Louis, for appellant.

Sidney Thorne Able, Charles P. Noell, and Walter L. Brady, all of St. Louis, for respondent.

SMALL, C. I.

Appeal from the circuit court of the city of St. Louis. Plaintiff was a switchman in defendant's yards at Madison, Ill., and on October 28, 1921, while engaged in endeavoring to couple or uncouple two tank cars, being the third and fourth of a cut of four cars, the front half of his foot was run over so as to necessitate amputation, leaving his heel and ankle.

The charge in the petition is that plaintiff was employed in interstate commerce and that these two cars were not equipped with automatic couplers which would couple and uncouple without the necessity of his going between them, as required by the Federal Safety Appliance Act; that such devices as were on said cars would not operate and for that reason he went between the cars to effect the uncoupling and was injured in consequence. The answer, besides a general denial, pleaded assumption of risk and contributory negligence. At the outset of the trial defendant admitted that plaintiff was its servant and was injured while engaged in interstate commerce. Plaintiff was the only witness who testified in his behalf. As to the manner of his injuries he testified in substance as follows:

Direct examination:

I was the man following the engine, pulling pins and making couplings for cars. "I was trying to get the pin on the fourth car, which the pin puller was next to me and the pin next to me would open all right, work, but the pin next to it wouldn't work, come out; I gave three or four jerks on it and couldn't move it; on the third car the pin lifters, they came clear through both sides and I just reached back and tried to move this pin lifter here, but it wouldn't move at all; it was stuck or something; I never paid any attention to what was the matter with it then; it wouldn't move, so I just put my hand on the fourth car and stepped over on the inside of the rail, and when I couldn't get this pin in here by the knuckle, because the pin lifter wouldn't move, I thought—

"Hr. Bezel: I ask that all his `becauses' be stricken out; he can tell what he did.

"The Court: Well, strike it out.

"A. I moved over inside and crossed into the rail, inside of the rail, to catch ahold of the pin lifter, the pin, the chain that holds the pin, and just as I did, why, I slid over a rail that was coming into this track, I slipped there and when I found myself slipping I threw my self outside of the track and the front portion of my foot was mashed and crushed. * * *

"Q. Now, between which cars were you working in the cut of four cars? A. Between the third and fourth car from the engine. * * *

"Q. Now, which wheels in the—what car ran over your left foot? A. It was the rear wheels of the third car."

Cross-examination:

"Q. Now then, when you abandoned the attempt to raise the pin with the lever on that [the fourth] car what did you do? A. I reached back to grab the lever on the third car; I just reached back like this. I turned my head around to the right to reach back to see that my hand go hold of the lever. I attempted to lift it up. Q. And you raised it up this way? A. I didn't raise it; it would not raise. Q. It would rise? A. No, sir. Q. It wouldn't come over? A. No, sir. Q. It just stayed perfectly rigid? A. Well, yes, sir. Q. Then how many times did you do that? A. A couple of times I guess; I tried to pull it loose a couple of times."

He further said the cars were moving five or six miles an hour while he tried to make the coupling when he was between the cars and was hurt.

Redirect:

"I lifted the lever on the fourth car, but the pin wouldn't come out. I next went to the pin lifter on the third car. After the two failed to work and uncouple the cars, there was no other chance to uncouple without going between the cars. I went in between the rails here and tried the pin here and reached for this pin here as I fell. There are two pins, one for each coupler. There was no other device on either car which I could have used for uncoupling these cars.

Plaintiff also testified that he was taken to the hospital and the front part of his foot near the ankle was amputated, so as to leave only half of his foot. He was 31 years old, earning between $175 and $200 per month at the time of his injury. Iliad not worked any after injury. Had not walked any on that foot (stub). Had four years' experience as a railroad man and was in the engineers' department for the government during the World War and before that worked as a concrete finisher.

Defendant's evidence:

Defendant's engineer testified that plaintiff did not go between the cars, but ran along the track on the outside of the cars while the train was going about eight miles an hour and was injured from outside the cars while attempting to uncouple them. One of defendant's physicians testified that plaintiff told him that he was injured while running alongside the cars, trying to lift the pin. Polk, defendant's brakeman, testified that plaintiff also told him as he was being taken to the hospital that he was injured while running alongside the cars. The defendant's foreman testified that just after his injury, in answer to his question how the accident happened, plaintiff said, "I fell over the rail."

Plaintiff was not interrogated by defendant as to whether he made the statements testified to by its witnesses, nor was plaintiff called in rebuttal. Defendant offered a demurrer to the evidence at the close of plaintiff's testimony and at the end of all the evidence, which were refused. The court gave one instruction for plaintiff. The portion complained of on this appeal relates to the measure of damages, and is as follows:

"In estimating and determining the measure of his damages, if any, you may take into consideration, in connection with all the facts and circumstances in evidence, the character and extent of plaintiff's injuries, if any, and whether they are permanent in their nature, the extent, if any, to which be has and will be prevented and disabled by reason of such injuries from working and earning a livelihood for himself, and may find for him such sum as in the judgment of the jury, under all the evidence in the case, will fairly and reasonably compensate him for the injuries, if any."

There was a verdict and judgment for plaintiff for $10,000, from which defendant appealed.

II. The first point made by appellant is that its demurrers should have been given because there was no evidence that plaintiff was injured while between the cars. It is true defendant's evidence...