Schlueter v. East St. Louis Connecting Ry. Co.

Decision Date11 April 1927
Docket NumberNo. 25458.,25458.
Citation296 S.W. 105
PartiesSCHLUETER v. EAST ST. LOUIS CONNECTING RY. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Herman Schlueter against the East St. Louis Connecting Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Howell and S. P. McChesney, St. Louis, for appellant.

Charles P. Noell and Glen H. Mohler, both of St. Louis, for respondent.

SEDDON, C.

This cause has recently been reassigned to the writer to express the opinion of this court. The action is one to recover damages for personal injuries, alleged to have been suffered by respondent because of appellant's negligence. Respondent was in the employ of appellant as a switchman, and was injured by the derailment of an engine tender, upon the footboard of which he was riding in the performance of his duties in the switchyard of the Missouri Pacific Railroad Company, at Dupe, Ill., about 4:40 o'clock on the afternoon of January 6, 1922. It is conceded by the respective parties herein that the switching movement in which respondent was injured was one in interstate commerce, and hence the action falls within the federal Employers' Liability Act.

The petition charges appellant with negligence in the following respects:

"(1) Plaintiff further states that the track and roadbed were defective and insufficient, in that it was old and out of repair and was uneven and rough, and the rails were of different sizes and weights and were old and worn and were not securely joined, and the ties were old and rotten and not laying upon a firm and even surface and roadbed, and the spikes were loose, and the rail joints were loose and uneven, and by reason of such defects, singly and collectively, the plaintiff was injured as aforesaid, and such condition of the track was known or by the exercise of ordinary care could and should have been known to the defendants and their officers and agents in time, by the exercise of ordinary care, to have prevented plaintiff's injuries, yet they neglected so to do, and sent plaintiff over such defective track, and thereby caused his injuries.

"(2) Plaintiff further states that the agents and employees of the defendant in charge of the movements of the engine involved knew, or by the exercise of ordinary care could have known and should have known, that the track was not in a condition in which an engine and tender of the style and type being used could be used with reasonable safety upon it, yet carelessly and negligently, in order to save a little time, sent the engine and tender over the track and caused the plaintiff to be injured as herein stated.

"(3) Plaintiff further states that the track involved was one used merely for the storage of cars and was not designed or intended for the use of large engines to pass over, and was not constructed and kept in condition so that it was reasonably safe for large engines of the kind being used at the time herein mentioned, and that the defendants, and their agents in charge, knew, or by the exercise of ordinary care could and should have known, that it was so constructed and kept, and that it was not reasonably safe for the passage of such engine and tender, yet they negligently used such track and thereby caused the plaintiff to be injured as herein stated.

"(4) Plaintiff further states that the agents and employees in charge of the speed and movements of the engine ran the engine at a rate of speed that was dangerous and not reasonably safe, considering the size of the engine and the condition of the track, when such agents and employees knew, or by the exercise of ordinary care, could and should have known, of such and the condition of the trackbefore running the engine over it at such speed, yet did so negligently cause the engine to run with a sudden sport of such negligent rate of speed and caused the plaintiff to be injured as herein stated."

The fourth assignment, or specification, of negligence, was withdrawn by the trial court from the consideration of the jury by an appropriate instruction.

The answer is a general denial, coupled with a plea of assumption of risk, as follows:

"Further answering, this defendant says that whatever injuries plaintiff sustained, if any, were the result of risks, hazards, and dangers usual, ordinary, and incident to his employment, or were caused by risks, hazards, and dangers which were obvious, or which he knew and could appreciate, and all of which were assumed by him at the time."

No reply appears to have been filed by respondent, but the cause was tried below as though a reply, denying generally the new matter of the answer, had been filed.

The switchyard at Dupo, Ill., wherein respondent was injured, was owned and maintained by the Missouri Pacific Railroad Company, but the evidence discloses that engines and switching crews of other railroad carriers, including the appellant railroad corporation, frequently used the tracks in said switchyard for the purpose of removing therefrom cars destined for points on connecting railroad lines. The switchyard extends in a north and south direction and consists of a number of tracks, of which tracks Nos. 7 and 8 are known as "running tracks," and track No. 1, upon which particular track the derailment in question occurred, is known as a "receiving" or "yard" track, and is one of the tracks used by the Missouri Pacific Railroad Company (according to the testimony of its assistant yardmaster) to "put cars on for the north, to be turned over to the terminal or A. and S., whatever connection comes handy to use it for."

Respondent, Schlueter, testified that he was 46 years of age at the time of his injury and had been in the continuous employ of appellant for 10 years, with the exception of 5 months in the year 1920; that on January 6, 1922, the date of his injury, he was a member of a switching crew consisting of a foreman, another switchman, and himself; that the switching crew were ordered by appellant to proceed from East St. Louis to the Dupo switchyard to get, or remove, six cars of perishable freight, consisting of poultry, fruit, and vegetables, known as "hot stuff" In the vernacular, or parlance of railroad men, which perishable freight was then en route in an interstate movement or shipment; that, in accordance with their instructions, the crew proceeded to the Dupo switchyard, and, when they arrived at the north end of the yard, they went directly to the regular running tracks, Nos. 7 and 8, whereupon the train-master of appellant, one Boyer, stopped them and told them that the running tracks were blocked and there was no way to get to the south yard, where the cars of perishable freight apparently had been left standing; that Boyer ordered the crew to go back and come through on track No. 1 to the south end of the yard; that the foreman of the switching crew got off the engine and talked with Boyer while the engine backed up 40 or 50 yards so that the switch to track No. 1 could be lined up, or thrown, to permit the engine to enter upon track No. 1; that the engine then backed south on track No. 1, with the tender on the front, or preceding, end of the train and the engine was pulling a caboose, which was on the north end of the engine; that respondent, who was known as the "headman," gave the engineer the signal to back down on track No. 1, and, as soon as the train entered the north end of track No. 1, the foreman of the crew ran up and took a customary position upon the east, or right, end of the footboard of the preceding tender of the engine, so as to be in position to signal to the engineer, who was on the east, or right, side of the engine; that respondent thereupon moved over to the middle of the footboard, next to the drawbar, and the other switchman of the crew took a position on the west, or left, end of the footboard of the tender; that, after the train had proceeded southwardly some distance, or about half the length of track No. 1, the south, or preceding, end of the tender suddenly left the rails of the track, whereupon the foreman and the other switchman, both being on the opposite and outside ends of the footboard, jumped off and were uninjured; respondent, however, who was standing near the middle of the footboard, was not in position to jump off to the side of the track, and his left foot was caught under the wheels, or under the footboard, of the derailed tender, and was crushed so badly as to necessitate the amputation of a part, including the toes, of the left foot; that, when the tender was derailed, it went to the west side of the track; respondent thought the tender traveled about 200 feet after the derailment, but was afterward told that it had traveled only about 25 feet; although respondent had been in the Dupo switchyard several times, pulling "drags" in and out of the yard, he testified that he did not know the condition of track No. 1 prior to his injury; after his injury, respondent was assisted by two of the crew in walking to the yard office, where he was given first aid treatment; in going to the yard office, he continued south on track No. 1, and observed that the cross-ties of that track were "in pretty bad shape; decayed and rough," and the spikes and rails "seemed to be loose; the spikes were worked up by the jolting."

On cross-examination, respondent testified that, before the year 1920, he had seldom been in the Dupo switchyard; after 1920, he had been to the Dupo yard to bring cars away about five times, three of which times were at night, after dark, and twice in the daytime, but he had never been upon track No. 1 before the time of his injury; "didn't know it was a bad track before we used it, before I started down there"; did not say to the foreman that "this was a bad track" before the crew went in on track No. 1; the engine was moving about 7 or 8 miles an hour, which...

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