Terminal R. Ass'n v. Farris

• Decision Date: 07 April 1934
• Docket Number: No. 9783.,9783.
• Citation: 69 F.2d 779
• Parties: TERMINAL R. ASS'N OF ST. LOUIS v. FARRIS.
• Court: U.S. Court of Appeals — Eighth Circuit

69 F.2d 779 (1934)

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

No. 9783.

Circuit Court of Appeals, Eighth Circuit.

March 6, 1934.

Rehearing Denied April 7, 1934.

S. Mayner Wallace, of St. Louis, Mo. (T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, Mo., on the brief), for appellant.

John S. Marsalek, of St. Louis, Mo. (Mark D. Eagleton and Allen, Moser & Marsalek, all of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and BOOTH, Circuit Judges.

WOODROUGH, Circuit Judge.

Appellee, as administratrix of the estate of her deceased husband, filed this suit to recover for his death under the Federal Employers' Liability Act, 45 USCA § 52. The deceased was in the employ of appellant and it is alleged in the petition and was shown by the evidence that both he and appellant were engaged in interstate commerce at the time of the accident. There was a trial before the court and a jury which resulted in a verdict in favor of the appellee in the sum of $30,838. Thereafter, the damages awarded by the jury were reduced by remittitur to $20,000 and judgment was entered for that amount. From said judgment the appellant duly perfected this appeal, presenting by proper assignments of error that the trial court erred in refusing to direct a verdict in its favor on the theory that the evidence was insufficient to show causal negligence on appellant's part; that the deceased's injury was due to his failure to follow appellant's rules; that the court erred in the charge to the jury on the issue of negligence; and further that the verdict was the result of passion and prejudice.

The suit was tried on an amended petition and answer thereto. The amended petition alleges that the appellant is a railroad corporation engaged in interstate commerce and that in its said business it used certain yards and a station known as the Union Station in the city of St. Louis, Mo., and the tracks, equipment, appurtenances, and devices connected with the operation thereof, all of which were used in the furtherance of its interstate commerce business; and that the appellant and deceased were engaged in interstate commerce at the time of the accident; that on August 21, 1931, the deceased was in the employ of the appellant and while engaged in his duties was caught and crushed between the parts of a train and so seriously injured that he died on the next day. In describing the accident the petition alleges that the Illinois Central Railroad Company, under a lease, or agreement with the appellant, was operating an interstate train upon the tracks of appellant at said Union Station and that said train was brought in contact with the train of the appellant in and about which the deceased was working, and that as a result of the collision deceased was caught and crushed between the parts of said train. The Missouri statute (section 4690, R. S. 1929 Mo. St. Ann. § 4690, p. 2098) rendering a railroad liable for the negligence of its lessee or licensee is pleaded in this connection.

The petition sets out ten acts of negligence on the appellant's part, for all of which it is responsible, as the cause of the collision. The first six of these allegations plead negligence with reference to the operation of the Illinois Central train in failing to give any signal or warning of its approach; in operating it at an excessive rate of speed; in failing to discover the deceased and the train of ears about which he was working; and in failing to stop or slacken the speed of the Illinois Central train so as to avoid striking the other train. The four remaining allegations of negligence are:

"7. That the defendant, its said agents and servants did negligently and carelessly order and direct the persons in charge of said Illinois Central Railroad Company's train to use the aforesaid track for the movement of said Illinois Central Railroad Company's train when said track was not clear, but which was obstructed by the train about which the plaintiff's said husband was working, as aforesaid."

"8. That the defendant, its said agents and servants did negligently and carelessly cause, suffer and permit sand to be and remain upon its rails and to thus and thereby interfere with the operation of devices, which were ordinarily used for the purpose of indicating the occupancy of a track and for preventing a train from moving upon a track when it was partly obscured or fouled by a train upon another track located nearby."

"9. That the defendant, its said agents and servants, negligently and carelessly failed and omitted to inspect said tracks or equipment and devices, or to discover the aforesaid conditions or the location of said Terminal train which was then and there so located as to obstruct the movement of said Illinois Central Railroad Company's train."

"10. That said defendant, its said agents and servants, did negligently and carelessly cause, suffer and permit said sand to be and remain upon said rails when in the exercise of ordinary care defendant could and should have removed or remedied said conditions or warned of same, in time to have prevented said movement of said train and the collision and injuries resulting therefrom."

The answer was a general denial.

At the conclusion of the evidence peremptory instruction in favor of the Terminal Company was requested, as follows: "At the close of the whole case the Court instructs the jury that under the law and the evidence the plaintiff is not entitled to recover against defendant and your verdict must be for the defendant." The request compels review of the evidence by this court and determination as to its sufficiency. Bank of Union v. Fidelity & Casualty Co. of New York (C. C. A.) 62 F.(2d) 1040, 1041.

The substance of the testimony is stated by counsel without contradiction and borne out by the record, as follows:

As to the physical situation, the evidence shows that the Union Station property consists of a train shed, to the east, referred to in the evidence as the old train shed; a number of tracks west of the old shed, referred to as the umbrella train shed, and the yard and tracks used in connection therewith. The tracks in the station run north and south. The tracks in the new part of the station, to the west of the old train shed, are indicated by letters. The two tracks principally concerned in the evidence are tracks C and D, track D being immediately west of track C. The dead ends of all the station tracks are to the north; at the south end they are curved.

By an admission of the parties, and by the evidence of the witnesses, it was shown, without dispute, that all train movements and the operation of all devices governing train movements in the station and adjoining yard were controlled by employees of the appellant. For the control of train movements, the appellant had installed a system of electrical signals, operated by employees, by means of levers, from a tower known as tower No. 1, located four or five hundred feet south of the station. The movement of trains into and out of the station and adjoining yards was directed solely by signals sent out from the tower to the men in control of the trains. The evidence shows that the train operatives were required to and did rely implicitly upon the signals given from the tower, and received no other orders, signals, or information relative to the time they should move, or the track they should run on. A train could not move until it received a green light signal, operated from the tower. For the information of the men in the tower, operating the levers, the appellant had installed an electrical signal and interlocking switch system, which was intended to operate automatically, according to the position of the various trains in the yard and station. The tracks were divided into blocks, and each block was connected to signals in the tower by electrical wiring. Each block was on a separate circuit, and if a train was in the block, it was intended that a red signal should show in the tower, under which circumstances the tower men would not direct another train into the block. This automatic system also controlled the switches, so that theoretically it was impossible to move a train in such a manner as to conflict with another train in a block. The tracks were so wired that when a train or car was standing in a block on any track, in a position where it would foul a train running upon an adjoining track, a red signal would be shown in the tower, disclosing to the lever operator the fact that the adjoining track was not clear and locking the switches so as to close that section of the track which was fouled. The evidence showed that the men in tower No. 1 could see the tracks, at the place where the accident in question occurred, but that they did not depend upon their view of the train, in the operation of the system, but solely upon the indicators before them.

The deceased was the conductor of a crew in appellant's employ, engaged in switching trains in and about the station and adjoining yard at the time of the accident. William F. Horn was the engineer, Bon West was the fireman, and Harry Wilson was the switchman. The accident occurred at about 10:30 p. m. Previous to the accident this crew had brought in upon track D a baggage and mail car which they set in at the head or south end of a Missouri Pacific passenger train, No. 17, which was being made up on said track. The train was scheduled to leave at 11 p. m. These two cars had been pushed in by the engine, which was headed north. After attaching the cars to the Missouri Pacific train, the crew cut off their engine, moving it about four feet to the south of the cars they had brought in. The deceased went to the south end of the shed, and signaled to the tower, by means of a push button located there, that the engine was ready to move out of the track. The signal by which the crew would be notified from the tower to back their engine out of the track was...