Terrell v. Missouri-Kansas-Texas R. Co.

• Decision Date: 10 June 1957
• Docket Number: No. 2,MISSOURI-KANSAS-TEXAS,No. 45755,45755,2
• Citation: 303 S.W.2d 641
• Parties: Ralph TERRELL, Appellant. v.RAILROAD COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 641

303 S.W.2d 641

Ralph TERRELL, Appellant. v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Respondent.

No. 45755.

Supreme Court of Missouri, Division No. 2.

June 10, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 8, 1957.

R. Shad Bennett, Clayton, and Gullett & Gullett, Denison, for appellant.

Fordyce, Mayne, Hartman, Renard & Stribling and Fred W. Schwarz, St. Louis, for respondent.

EAGER, Presiding Judge.

This is a suit for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. The jury returned a verdict for the defendant, and plaintiff appealed, after his motion for a new trial was overruled. Interstate commerce was concededly involved. The only questions raised on this appeal are the propriety of several instructions given at the request of defendant, but it will be necessary to review the facts. We shall refer to the parties as they appeared below; the amount of plaintiff's prayer was $100,000.

Plaintiff, Ralph Terrell, was a brakeman in defendant's employ; he had been so employed for approximately 10 years, but during portions of this time he had been laid off due to lack of seniority. On January 17, 1955, plaintiff was one of the brakemen on a local freight train running from McAlester, Oklahoma, to Denison, Texas. The injury occurred at Atoka, Oklahoma, at about 9:00 A.M. on that date. The train had stopped there to drop off one car and pick up three others; it stopped on the main line track, headed south, and about even with the 'tool house.' This location was approximately 567 feet north of the depot. Between these points, and variously stated as 356 feet, 338 feet and 428 feet south of the tool house was a switch leading to an interchange track of the 'OCAA' short line railroad. The differences in the stated measurements resulted from the variation in the respective points on the switch from which or to which the measurements were taken. This interchange track ran in a curve to the northwest, and from it led southwardly a spur track of the OCAA which in turn divided into two spurs; these passed east of the depot, whereas the MKT track passed it on the west. The three cars to be picked up were on one of these spur tracks of the OCAA. The principal controversy here arises over the making, and the manner of making, of a 'drop switch' or 'flying switch' of these cars by which they were connected to the south (or head) end of the standing train.

Defendant does not brief any failure of plaintiff to make a submissible case, and it appears rather clearly that plaintiff did so. In considering defendant's instructions, we shall consider whether one or more of them ignored issues of negligence made by plaintiff, and for that purpose we must consider plaintiff's evidence, and in a light favorable to him.

When the train stopped, plaintiff was instructed to, and did, uncouple the first car; the engine (a diesel) pulled it south to the depot where the conductor got the necessary instructions or orders. Plaintiff testified that this car was left attached to the rear of the engine in the subsequent switching operations, whereas defendant's witnesses testified that it was promptly spotted in the MKT yards south of the depot and that plaintiff assisted in that operation. Be that as it may, the engine then backed northwardly into the OCAA interchange or switch until it had passed the entrance to the spurs; it then ran forward and coupled onto the three cars, plaintiff having previously released the brakes. The engine then backed to a point from which it could run forward along the interchange, pushing the three cars, and it did proceed thus to the MKT main line, and headed south; it stopped at a point, stated by plaintiff as 'just beyond the depot,' and also as about twenty car lengths from the OCAA switch. At this time Eldon Parker, the 'list brakeman' in charge of the switching operation, was standing at the switch, and he had given the signal for a 'drop switch,' which all concerned had been and understood. This meant (as here employed) that the engine would start backwards, pulling the cars, then check its momentum enough to let 'the slack' in the cars run out, whereupon the brakeman riding on the front of the engine would pull the pin on the coupling of the first (north) car; the engine would then accelerate its speed somewhat, and back on into the OCAA switch, whereupon Parker immediately closed or reversed the switch, and the three cars rolled on down the main line of their own momentum and coupled with the train . In this movement plaintiff was riding on the north end of the north (or lead) car, to handle the braking operation. He was standing on the brake platform attached to the north end of the car, at such a position as to facilitate the handling of the brake. There is no complaint that the brake was not in proper working order. The engine started backing, as planned, braked sufficiently to 'run out the slack,' and the coupling pin was pulled after proceeding 'seven or eight' car lengths, though at a much lesser distance according to other witnesses. One controversy concerns the speed thus attained before the cars were released; plaintiff states that when the pin was pulled they were traveling 'about 12 miles an hour.' It is uncontroverted that the cars were traveling down a grade of slightly more than one-third of one per cent. One car was loaded with cement. Plaintiff stated that he had taken the slack out of his brake so that it could be applied promptly, and that he had tightened it and released it, but that, as the cars moved, he did not actually apply or tighten the brake to slow the movement until just as his car got 'even with the switch,' from which point he still had 'close to' 360 to 380 feet of distance left for braking. He said that the reason he waited was to prevent stopping the three cars in the switch, which would 'foul' it or obstruct it, and therein lies one great source of controversy in the case. In explanation, plaintiff stated that he did not know that he could not control the movement of the cars with the brake until he actually applied it upon passing the switch, when he found it wholly inadequate; he further testified that he then applied the brake with all his strength, but that the cars were not controlled and could not have been controlled with one hand brake under those conditions. In any event, the brake 'didn't brake it down,' and when plaintiff was 12-15 feet from the train, still traveling at about 12 miles per hour, and fearing that he would be knocked into the train, he started for the ladder to climb down, but the impact knocked him off and he fell about 14 feet to the ballast right in front of the tool house. His injuries were substantial, including a compressed fracture of the first lumbar vertebra, but there is no point in discussing them here.

The negligence pleaded was: (1) in making a drop switch when there were facilities at hand to make a 'power-connected' switching movement; (2) in making this switch under such circumstances that they cars could not be safely controlled by one hand brake; (3) in not allowing sufficient distance between the switch and the train, thus making the operation hazardous; (4) in making the drop switch with the extra car attached to the rear of the engine, thus necessitating a higher speed; (5) in making the 'drop' at a high and excessive speed; (6) in making a drop switch in violation of operating rules. We may eliminate (4), for there was no evidence which fairly established that such action might be found negligent.

Plaintiff testified that he had participated in comparatively few drop switches at this location, and in none where more than one car was switched; that Parker, the 'list man,' was his superior and that plaintiff was required to obey his orders; the evidence also indicated that in switching operations even the engineer followed the orders of the 'list man.' Plaintiff further testified that there was ample trackage in the south yards for the engine to 'run around' the three cars and get on the other end of them, so that it might then back the cars into the train in a 'power-controlled' switch which would be safer, because the engineer could then control the speed of the movement at all times. Two of defendant's witnesses admitted that such a movement would or might be safer, but insisted that drop switches were habitually used at that point with three or more cars, and with safety. The reasons given for using the drop switch were: that it saved time, that the yard tracks might be blocked with other cars because they were used primarily for storage and unloading (though no one actually testified that they were then blocked), and that such cars might have to be resorted, that the drop switch was 'good railroading' and was the usual method employed, and that the tracks in the south yard were old.

Defendant's witnesses testified, as did plaintiff, that there would be no reason in making a drop switch at this point at a speed of 12 miles per hour; the estimates of defendant's witnesses as to the speed of the cars, after their release from the engine, varied from 4 to 6 or 7 miles per hour, all stated as approximate figures. We mention this because plaintiff is entitled to the benefit of any favorable adverse testimony.

Defendant's witnesses insisted that plaintiff could have controlled these cars adequately with the brake, had he used it properly, and that the brake was never fully applied, nor was it applied soon enough. Plaintiff stated, at one point, that his instructions required him to wait until he got by 'the point of the switch' before tightening the brakes, which defendant's witnesses denied. Plaintiff testified also that there was a strong wind from the south which, with the down hill grade, accelerated the movement of the cars; he also explained, somewhat confusedly so far as we are concerned, another method of switching...