St. Louis & S.F. Ry. Co. v. Jeffries

• Decision Date: 24 October 1921
• Docket Number: 5649.
• Parties: ST. LOUIS & S.F. RY. CO. v. JEFFRIES.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F. 73

ST. LOUIS & S.F. RY. CO. v. JEFFRIES.

No. 5649.

United States Court of Appeals, Eighth Circuit.

October 24, 1921

W. F Evans and E. T. Miller, both of St. Louis, Mo., for plaintiff in error.

Sidney Thorne Able and Charles P. Noell, both of St. Louis, Mo., for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and LEWIS, District Judge.

CARLAND Circuit Judge.

Jeffries hereafter called plaintiff, sued the railway company hereafter called defendant, under the federal Employers' Liability Act (35 Stat. 65 (Comp. St. Secs. 8657-8665)), to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. There was a verdict and judgment for the plaintiff. Defendant sued out a writ of error. The alleged negligence of defendant is stated in plaintiff's complaint as follows:

'Plaintiff further states that on or about the 24th day of October, 1917, he was in the employ of the defendant as a brakeman, and that while he was so employed on the said day it was necessary for the plaintiff to throw a certain switch to permit the train on and about which the plaintiff was working to move off of a siding at Menfro, Mo., onto the main line; that in pursuance to said duty he threw the switch and permitted the train to move out on the main line; that it then became and was the duty of the conductor on the said train to reline the switch after the train had passed upon the main line and that he in pursuance to said duty relined the switch; that it then became and was the duty of the engineer on the said train either to stop the train or to let the train drift along without giving it any more steam at all until the engineer received a signal from the plaintiff that the plaintiff was ready to have the engine given steam, ready to have the train to proceed, and it was then the duty of the engineer after receiving such signal from the plaintiff not to give the engine steam or in any manner start the train forward at a faster rate of speed until after the engineer had given the usual and customary signal of two short blasts signifying that he was about to give the engine steam and proceed on the journey, and plaintiff further states that while he was stationed on top of one of the cars in the train the conductor threw the switch and got upon the train and that the plaintiff gave a signal to the engineer to proceed, and further states that he received no response from the engineer to indicate that the engineer was about to proceed, and plaintiff further states that thereafter and while he was waiting for such signal from the engineer to indicate that the engineer was about to proceed, he, the plaintiff, was moving over the top of the train toward the engine, and that as the plaintiff was at the end of one of the cars moving over to the car nearer to the engine, that train was suddenly caused to move forward at a greatly increased rate of speed, causing a sudden, violent, and unusual jerk and taking out of the slack of the train, causing the plaintiff to be thrown from the said car to the ground and to be run over and injured as hereinafter stated.

'Plaintiff further states that his said injuries were caused by the carelessness and negligence of those in charge of the movements of the said train in suddenly permitting, allowing, and causing the train to start forward at an increased rate of speed without first having given the usual and customary signal that the train was about to proceed, and by reason of their negligence in causing such violent, unusual, and sudden jerk of the train.'

Defendant by its answer denied generally the allegations of the complaint and pleaded contributory negligence and assumption of risk. The first alleged error assigned is that the trial court erred in refusing to direct a verdict for the defendant because the alleged custom was not proven. The position of counsel is illustrated by the following language taken from their brief:

'The situation therefore presented is that two or three witnesses for the plaintiff testified that there was such a custom, while six or seven witnesses for the defendant testified that there was not; and there is absolutely no evidence in the record to disprove the positive testimony of some of defendant's witnesses who stated that they did not observe any such custom in increasing the speed of their trains. The result therefore is as stated in the Lindeman case that there 'was uncontradicted evidence that the custom to which the witnesses for the plaintiff testified was not uniform, and hence that it was not binding.' If it should be contended that where there is contradictory testimony as to the existence of a custom, it is the province of the jury to determine if the custom in fact exists, yet where there is uncontradicted testimony as existed here that the alleged custom was not uniform, it is the duty of the court to so declare.'

The first position would render it impossible to ever establish a custom if some witness whose orthodoxy in telling the truth would permit him to deny that there was such a custom as claimed, for if the proposition is sound it must be just as sound with one witness as seven. We do not think it can be claimed that because certain witnesses testified that they did not observe any such custom that the evidence as to custom was uncontradicted in view of counsel's statement 'that two or three witnesses testified that there was such a custom. ' The second proposition is to the effect that if it is claimed that where the existence of a custom is in issue the question may be one for a jury, still such a rule would not apply in the present case, because there was uncontradicted evidence that the custom was not uniform. An examination of the evidence of the plaintiff and his witnesses convinces us that counsel are mistaken when they say that there was no evidence that the custom was uniform. We are of the further opinion that it was not incumbent on plaintiff to show such a custom as would make it a rule of the common law. A servant has the right to rely on signals and warnings customarily given in the conduct of the business in which he is engaged, and if the master fails to give these, he is negligent. Anderson v. Northern Mill Co., 42 Minn. 424, 44 N.W. 315; Burlington, etc., R. Co. v. Crockett, 19 Nev. 138, 26 N.W. 921; Hough v. Grants Pass Power Co., 41 Or. 531, 69 P. 655; Andreson v. Ogden Union R., etc., Co., 8 Utah, 128, 30 P. 305; Lyons v. Ryerson, 148 Ill.App. 284; Jones v. R. Co., 149 Ky. 566, 149 S.W. 951; Hines v. Mfg. Co., 199 Mass. 522, 85 N.E. 851; Fitzgerald v. Twine Co., 104 Minn. 138, 116 N.W. 475; Schoen v. R. Co., 112 Minn. 38, 127 N.W. 433, 45 L.R.A.(N.S.) 841; Lancaster v. R. Co., 143 Mo.App. 163, 127 S.W. 607; Germanus v. R. Co., 74 N.J.Law, 662, 67 A. 79; Ondis v. Tea Co., 82 N.J. Law, 511, 81 A. 856, 46 L.R.A.(N.S.) 777; Baccelli v. Delaware, etc. Co., 138 A.D. 623, 122 N.Y.Supp. 849; R. Co. v. Bartley, 172 F. 82, 96 C.C.A. 570; R. Co. v. Dutcher, 182 F. 494, 104 C.C.A. 438; Allard v. Contract Co., 64 Wash. 14, 116 P. 457; McKee v. R. Co., 151 Ky. 698, 152 S.W. 759; McCalley v. R. Co., 169 Ky. 47, 183 S.W. 234, L.R.A. 1916F, 551; Taber v. R. Co. (Mo.) 186 S.W. 688; Bowman v. Coal, etc., Co., 168 Mo.App. 703, 154 S.W. 891; Huxoll v. R. Co., 99 Neb. 170, 155 N.W. 900; Curran v. R. Co., 211 N.Y. 60, 105 N.E. 105; Cement Co. v. Brown, 45 Okl. 476, 146 P. 6; Maness v. Coal Corp., 128 Tenn. 143, 162 S.W. 1105.

In Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135, 18 Sup.Ct. 35, 42 L.Ed. 411, the uncontradicted evidence showed the following facts:

'The defendant had been in the daily habit for several years of running out of Washington and Alexandria a repair train of open flat cars loaded with its employees, and the train returned every evening about 6 o'clock and brought the workmen

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