St. Louis & H. R. Co. v. Walsh Fire Clay Products Co.

• Decision Date: 07 May 1929
• Docket Number: 20552
• Citation: 16 S.W.2d 616
• Parties: ST. LOUIS & H. R. CO. v. WALSH FIRE CLAY PRODUCTS CO.
• Court: Missouri Court of Appeals

16 S.W.2d 616

ST. LOUIS & H. R. CO. v. WALSH FIRE CLAY PRODUCTS CO.

No. 20552

Court of Appeals of Missouri, St. Louis

May 7, 1929

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

“ Not to be officially published.”

Action by the St. Louis & Hannibal Railroad Company against the Walsh Fire Clay Products Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

T. M Pierce and Samuel H. Liberman, both of St. Louis, for appellant.

Hostetter & Haley, of Bowling Green, and Grover C. Huston, of Troy, for respondent.

OPINION

BECKER, J.

Plaintiff recovered judgment against the defendant in the sum of $1,750 in an action for damages based upon the alleged negligence of defendant in handling, managing, and manipulating a freight car loaded with clay, permitting it to get out of its control and to run wild down a side track adjoining its plant and onto plaintiff’s main line track, where it ultimately crashed into a train belonging to plaintiff which was standing at Silex, Mo. Defendant in due course appeals.

Appellant urges that the court erred in overruling its demurrer offered at the close of the case in that the plaintiff failed to show, either directly or through reasonable inferences from the facts offered in evidence, that the defendant was guilty of some act or omission connected with the management, handling, and manipulation of the car in question, which act or omission was such as an ordinarily prudent person, in the same or similar circumstances, would not have done or omitted to do, and for which the defendant can be held as for negligence.

Viewing the evidence in the light most favorable to plaintiff, and allowing it all reasonable inferences of fact to be drawn therefrom, there is evidence in this record tending to prove that the plaintiff constructed, owned, operated, and maintained a switch track for the use and benefit of the defendant at a loading dump near one of defendant’s clay pits, and that said switch track was equipped with a derail switch, the purpose of which was to derail any car that might get away so as to prevent it running onto the main track of plaintiff. From time to time plaintiff railroad company set out a number of empty cars on the switch track so that defendant could load them with clay from its loading dump. When an empty car was loaded it would be moved from its position in front of the loading dump to make room for another empty car. When all of the empty cars had been loaded the train formed by them would be moved and transported to destination. On the occasion in question five empty cars were set out on the side track. The brakes on one of these cars were not in working order, and which fact the defendant was apprised of the evening before the collision when, moving the car, the brakes failed to work and the car got away and started down the switch track. Defendant’s employés managed to stop it before it reached the derail by putting pieces of timber, referred to as "chocks," beneath the wheels. It was this car with the defective brakes which was the first one loaded, after which defendant’s employés proceeded to move it down the track about a car’s length so as to place the next empty car alongside the loading dump.

Defendant’s employé, Collins, uncoupled the second car of the string-that is, the empty car immediately behind the loaded car with the defective brakes-from the other cars, and by use of a pinch bar started to move these two cars. Defendant’s employé, Turnbull, took his stand in the empty car in a position to manipulate its brakes. After the two cars had been moved some five or six feet Collins noticed that the loaded car had gotten loose from the empty car and had started down the switch track toward plaintiff’s main line. He thereupon ran down the track alongside the loaded car, placing chocks in front of the wheels thereof in an effort to stop it. Turnbull, who was in the empty car behind the loaded one, after having set the brakes, when he realized that the loaded car was running wild, jumped off, and threw chocks under the wheels of the loaded car; the last chock, when he threw, was when the loaded car was distant some 12 or 15 feet from the derail. Despite the efforts of Collins and Turnbull the loaded car gained momentum and passed over the derail and out onto the defendant’s main line, and continued down the main track for some 4 miles to Silex, Mo., where it ran into the rear of one of plaintiff’s trains.

Collins further testified that he and his brother-in-law, Turnbull, were the only employés of the defendant present when the car got away from them. He testified that never before that day had they tried to hold a loaded car with the brakes of an empty car attached to it; that "we had not put any chocks under this car until we got ready to stop it; then was when we were going to chock it. * * * We were relying upon starting the two cars and use the brakes of the empty car, and we knew we would also have to chock the car to stop it. We did not put chocks under before we started. We could have put them where we wanted to stop the car before we started it, but we did not. * * * We attempted, after it started, to put chocks under it to stop it, and we did not stop the car. * * *...