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

• Decision Date: 17 October 1916
• Docket Number: 4664.
• Citation: 237 F. 1
• Parties: ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO. v. SCHUERMAN. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

237 F. 1

ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO. v. SCHUERMAN. ^[1]

No. 4664.

United States Court of Appeals, Eighth Circuit.

October 17, 1916

W. M Hezel, of St. Louis, Mo. (T. M. Pierce and G. T. Priest, both of St. Louis, Mo., on the brief), for plaintiff in error.

W. H Douglass, of St. Louis, Mo. (William H. Bartley, Jr., of St Louis, Mo., on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH Circuit Judge.

The defendant in error was the plaintiff below and the plaintiff in error was the defendant and they will be styled as in the District Court. The defendant, the St. Louis Merchants' Bridge Terminal Railway Company, was engaged in interstate commerce at the time here in question between St. Louis, Mo., and East St. Louis, Ill., and the plaintiff, William J. Schuerman, was in its employ as a switch foreman and was employed in switching cars engaged in interstate commerce. On the night of January 13, 1914, he was directed to switch, among others, two cars, a Merchants' Despatch Transportation Company car, hereafter for brevity called an M.D. & T. car, and a Missouri Pacific car. These cars, with many others, were standing on a siding. The train crew went in on the siding from the north where the Missouri Pacific car was standing further south than the M.D. & T. car, and they cut loose the cars to the south of the Missouri Pacific car and drew the balance of the cars to the north until they had passed the switch and then backed down upon the Frisco track. They then detached the other cars from the Missouri Pacific car, drew them back to the switch, and replaced them on the side track. They there detached the cars to the rear of the M.D. & T. car and went north with it and two other cars in advance of it to the switch and then backed down the Frisco track to couple the M.D. & T. car onto the Missouri Pacific. Both these two cars had been equipped with automatic couplers, the Missouri Pacific with what is known as a Tower and the M.D. & T. with what is known as a Janney coupling. Both were equipped with a single lever projecting to the left of the car as one stood facing the end of the car. It was not the custom in detaching and coupling cars to open the coupling on both cars, but at this yard it was the custom to open the north coupling on the south car at the place where it was desired to detach or couple the cars. In this way the north coupling was supposed to be open on the Missouri Pacific car and the south coupling on the M.D. & T. was supposed to be closed. The plaintiff testified that, as they were about to make the coupling:

'I found the knuckles closed. I tried to open the knuckle on the Missouri Pacific with the lever that is on the side of the car, and I found that the knuckle wouldn't open very well, so by working the lever with one hand-- and they got what they call a little pit or a nipple, I don't know what they, that's what we call it among railroad men-- by working that back and forth, that little thing that holds the lock, it lets the knuckle get open. So I opened this knuckle, gave a sign to back up, and these cars hit and the coupling didn't make. I then went in between them and opened the knuckle on the M.D.T. car, gave a signal to back up, and when these cars hit again the coupling didn't make. So I was wondering what the trouble was. I stepped in between them, then, and looked and found that the lock pin that locked this knuckle was half broken off, that the knuckle lock worked itself in behind the knuckle; that wouldn't allow the knuckle to close. The bottom half was broken off. So then I had to take this pin and knuckle and everything out and set it on the ground, fix this knuckle lock and pick this knuckle back up and put this up in the car and fix it in position that part of this knuckle lock would hold it together enough that I could get this car out there. After I done that, I turned right around and went back to this Missouri Pacific, which was about four or five feet away, and had to go through that same thing again of opening that knuckle. After doing that and opening this knuckle, I started out and gave the signal. As I gave the signal, why, I went to make the second step, and I noticed that this foot had wedged itself in down between the two rails, so the only thing now to my mind then is to give a stop sign. As I did, I throwed myself down, and I went to use this right foot of mine to try to kick this left foot loose before the wheels caught it, but the first kick I got, the wheels ran on up on both feet and the car stopped there.'

It appears that in the last effort to make the coupling the plaintiff, in attempting to leave his place of danger between the cars and after he had given the signal to back up, found his foot caught in the frog and was unable to get it out, and the train backed down cutting off the front portion of the left foot and severely injuring the right foot and ankle. The case was tried to a jury who returned a verdict for the plaintiff, upon which judgment was rendered, and the defendant sued out this writ of error.

It is doubtful whether there is anything in the brief of plaintiff in error amounting to a specification of errors as required by the second subdivision of the second paragraph of rule 24 of this court (150 F. xxxiii, 79 C.C.A. xxxiii), but this question is not raised by defendant in error, and under the head of 'Points and Authorities,' apparently under the third division of the second paragraph of rule 24, we find what we assume to be the errors relied on as follows:

'I. The District Court erred in refusing to give, at the close of the whole case, the following instruction requested by the defendant: 'The court instructs the jury that under the pleadings and the evidence the plaintiff is not entitled to recover and your verdict must be for the defendant.' For the reason that neither under plaintiff's nor defendant's testimony did any defective condition of the coupler contribute in whole or in part, in any legal sense, to the injury. The plaintiff's act was the sole cause of the accident.

'II. The District Court erred in admitting in evidence on behalf of the plaintiff, over the objections and exceptions of the defendant, testimony by plaintiff that at the place where the accident happened the blocking of the switch point or the space between the rails had become worn so as to leave an opening in which plaintiff's foot, or feet, were caught when he was attempting to come out between the cars. There was no allegation of worn or defective blocking in the petition and it is elementary that a plaintiff must stand or fall under the specific allegations of his petition.

'III. The District Court erred in refusing to give the following instruction requested by the defendant: 'The court instructs the jury that, though you find and believe from the evidence that the coupler of either of the cars in question was defective, yet if you find and believe from the evidence that the coupler of either car, or both of said cars, were adjusted by the plaintiff while all the cars were standing still and that the plaintiff after said adjustment signaled for a come-back movement while still wholly or in part between the cars, and the cars attached to the engine were moved backwardly and plaintiff ran upon or over, then the court instructs the jury that said signal so given was the proximate cause of the accident and your verdict must be for the defendant.' For the reason that it affirmatively and without contradiction appears that the defective condition of the couplers, as stated by the plaintiff in his testimony, did not contribute to the injury, but, on the contrary, the negligent conduct of the plaintiff was the sole cause of the injury.'

We shall briefly consider these three alleged errors. This suit was brought under the Employers' Liability Act law of April 22, 1908, 35 Stats. 65 (Comp. St. 1913, Secs. 8657-8665), and under what is known as the Safety Appliance Act of March 2, 1893, 27 Stats. 531, as amended by the Act of April 1, 1896, 29 Stats. 85 (Comp. St. 1913, Secs. 8605-8612), and the Act of March 2, 1903, 32 Stats. 943 (Comp. St. 1913, Secs. 8613-8615).

As at the outset of the trial it was admitted that the defendant was engaged in interstate commerce, and that the plaintiff at the time in question was employed by the defendant in interstate business, there seems to be no doubt that the suit was properly brought under the Employers' Liability Act, and that it and the Safety Appliance acts must determine the question of the liability of the defendant. Southern Railway Co. v. United States, 222 U.S. 20, 32 Sup.Ct. 2, 56 L.Ed. 72.

The Act of March 2, 1893, 27 Stats. 531, contained the...