Simon v. Terminal R. Ass'n of St. Louis

• Decision Date: 20 February 1951
• Docket Number: No. 28037,28037
• Citation: 237 S.W.2d 244
• Parties: SIMON v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

Page 244

237 S.W.2d 244

SIMON v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 28037.

St. Louis Court of Appeals, Missouri.

Feb. 20, 1951.

Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.

William C. Barnett, St. Louis, for respondent.

HOUSER, Commissioner.

This is an action under the Federal Employers' Liability Act, brought by an employee against a railroad engaged in interstate commerce, for personal injuries alleged to have been sustained on September 9, 1948 while working as a member of a labor gang engaged in laying railroad track in the yards of defendant company in East St. Louis, Illinois.

At the time of the injury the gang was lifting a railroad rail. Plaintiff claims that the other members of the gang permitted the weight of the rail to be shifted and thrown on him, causing back injuries, and charged defendant with negligence 'in that it was defendant's duty to have its foreman or some other person designated to give the orders so that the gang might work in unison and lift, carry and lower the rail properly and thus prevent undue amount of weight being thrown on plaintiff. Defendant failed to have its foreman or other person give such orders, and because of such failure the weight of the rail was caused to be thrown on plaintiff.'

Plaintiff's theory of the case is clearly indicated in his Instruction No. 1 which was given to the jury in the following form: 'You are instructed that if you find and believe from the evidence that on September 9, 1948, while plaintiff and defendant were engaged in interstate commerce in defendant's railroad yards known as Wiggins No. 2 in East St. Louis, Illinois, plaintiff in the course and scope of his employment by defendant was working with the other members of defendant's extra gang lifting a rail with tie tongs or 'dogs', that said rail was lying on the end of the ties on the east side of a track under the overhang of freight cars standing on said track, that said rail was being handled by twelve men working in pairs with six men on each side thereof, that plaintiff was working on the west side of said rail and it was necessary for him to work under the overhang of one of said freight cars and to lift in a stooped and crouched position, that it was the duty of defendant to have a foreman or designate someone to call the orders so that the gang might lift and work in unison, and that defendant failed to have a foreman or designate any one to call such orders, then you may find defendant guilty of negligence, and if you further find and believe from the evidence that such negligence, if any, either in whole or in part, caused some or all of the other men in said gang to raise said rail in such a manner that an undue amount of weight was thrown on plaintiff, and that as a direct result thereof, if you so find, plaintiff was injured, then your verdict must be for plaintiff and against defendant.'

Following a verdict for plaintiff for $3,000 and the overruling of defendant's motion to set aside the verdict and judgment and enter judgment in accordance with its motion for a directed verdict and for judgment notwithstanding the verdict, this appeal followed.

The sole question is whether plaintiff made a submissible case. In determining this question plaintiff is entitled to have the record facts and every reasonable inference to be drawn therefrom considered in the light most favorable to plaintiff, Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 212 S.W.2d 764; Dixon v. Wabash R. Co., Mo.App., 198 S.W.2d 395, and we will not interfere with the verdict of the jury if there was substantial evidence to support the verdict or if reasonable inferences in support of the verdict may be drawn from substantial evidence to be found in the record.

The facts, stated in the light most favorable to the plaintiff, are that the labor gang of which plaintiff was a member was lifting and carrying rails which were 39 feet long and which weighed 110 pounds to the yard, or a total of 1430 pounds. On September 9th the gang worked all morning, handling rails. 'Straw boss' Eddie McGlown, who was assistant foreman on the job, was present. The foreman, John Bova, was 'up at the north end of the track,' apparently away from the immediate scene of the operations.

In the afternoon shortly after 12:30 the gang went back to work and was engaged in lifting and carrying rails from one track to another, a distance of 6 or 8 feet. The modus operandi was as follows: The gang worked in pairs, with 6 men on each side of a rail, spaced 1 1/2 to 2 feet apart. Each pair of men was equipped with an appliance called 'tongs' or 'dogs' weighing 10 or 12 pounds. They have inch-thick solid iron handles and are designed to grab a rail. A grab iron on the dog hooks over the ball of the rail. When the dogs are opened their grab irons hook over the ball of the rail, when closed the grab irons take hold of the rail, and by effort of the workers the rail is thereby lifted and carried to its position, where it is laid down and the dogs detached.

When the straw boss was present he would give the men certain signals in order to co-ordinate their work. He would tell the men 'Get your dogs ready' or 'All right boys, get ready, I am going to call it'; then he would say, 'Bow down' and they would bow down, stooping over; then he would say, 'Put your dogs under' or 'Hook on'. After he saw that all of the men had the dogs 'under' he would say 'Raise', or 'Up', whereupon the men would lift in unison. When they reached the new resting place for the rail the straw boss would give the signal 'Sit down'.

After lunch the crew moved a couple of rails with Eddie McGlown, the straw boss, in charge and giving the signals. Then McGlown left, presumably to get a barrel stave, which is used to space the expansion joints between the rail ends. Bova was not present. Before McGlown left, he did not designate anyone in the gang to call the signals while he was gone, nor was there a 'lead man', who calls when the straw boss is not present.

Plaintiff was working on the west side of the rail, he and his immediate co-worker, Andrew Mike, constituting the third pair from the south end and the fourth pair from the north end. The rail which was being lifted at the time of the alleged casualty was lying on the east end or the cross ties, parallel to the track, even with the end of the ties, and under the overhang of a boxcar which was at rest on the tracks. The rail was east of the boxcar and east of the east rail of the tracks. The ties extended 1 1/2 feet beyond the rails and the boxcar hung over the rails the same distance. The floor of the boxcar was approximately 3 feet above the level of the track. This made it necessary for the six men on the west side of the rail to stoop or crouch down under the bottom of the floor of the boxcar, whereas the men on the east side of the rail were able to stand up straight. As plaintiff started to handle the rail he was 'in a crouch', bent over, with his back against or near the bottom of the boxcar. The grab irons were hooked and all was ready for the lifting operation on the next rail.

While both McGlown, the straw boss, and Bova, the foreman, were gone and immediately before the rail was picked up, some member of the crew whose identity was unknown to plaintiff hollered 'pick up' and in obedience to those words all of the men on both sides, six on the east and six on the west side of the rail, started to pick it up. The men on the east side raised up with the rail, which threw some but not all of the weight on plaintiff, who went down in a crouch with his hands or elbows on his knees. His back 'popped' when they picked up the rail. He felt it 'pop' when he started to pick it up. When one's back is injured by the movement of the rail without being notified, he is said to have 'snatched his back.' The rail was lifted about 6 inches off the ground, the men on the east side had stepped back, the rail was moved about 6 inches toward the east, plaintiff hadn't started to walk, and thereupon plaintiff said 'Set it down men, I hurt my back' and the rail was then let down onto the ground.

Neither plaintiff nor any of his fellow...