Thompson v. Missouri Pac. R. Co.

• Decision Date: 04 October 1926
• Docket Number: No. 7372.,7372.
• Citation: 15 F.2d 28
• Parties: THOMPSON v. MISSOURI PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 28 (1926)

THOMPSON v. MISSOURI PAC. R. CO.

No. 7372.

Circuit Court of Appeals, Eighth Circuit.

October 4, 1926.

W. H. Douglass, of St. Louis, Mo. (Douglass, Inman & Horsefield, of St. Louis, Mo., on the brief), for plaintiff in error.

Merritt U. Hayden, of St. Louis, Mo. (James F. Green, of St. Louis, Mo., on the brief), for defendant in error.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

BOOTH, Circuit Judge.

This is a writ of error to review a judgment in favor of defendant in error, defendant below, entered upon a verdict in a personal injury case. The complaint alleges that at the time of the accident plaintiff was in the employ of defendant as a switchman in the yards at Dupo, Illinois; that at the time of the accident both plaintiff and defendant were engaged in interstate commerce; that in the yard where plaintiff was working was a lead track running north and south; that at its southern end the lead track was on a grade, so that cars released at that point would run by gravity down the lead toward the north; that a number of switch tracks ran from the easterly side of the lead track, numbered respectively from south to north 25 to 32; that it was the custom of defendant in distributing cars to the switch tracks, to pull a train onto the grade or "hump" at the southern end of the lead, and there cut the cars off and run them down the lead to the desired switch track; that it was customary for a switchman to ride these cars down to the switch tracks; that the switches were operated by a man stationed in a tower near the south end of the lead; that the foreman in charge of the train which was being broken up, would designate which switch track each car was destined for by marking the number of the track on the car with chalk; that the towerman was so located that he could see the several switch tracks, and it was his duty to notify the foreman when a particular switch track was full; that it was then the duty of the foreman to switch no more cars onto that track until he had moved the cars already thereon with an engine so as to make more room.

The complaint further alleges that about 3 a. m., December 26, 1924, plaintiff was helping to distribute the cars of a train onto said switch tracks; that at the time of the accident he was riding a car destined for switch track 31; that it was necessary to pass track 28 in order to reach track 31; that there were a number of cars on track 28, and one of them had been left so close to the lead track that there was not clearance for a car coming down the lead; that as plaintiff came near track 28, riding his car on the lead, he saw that his car would not clear the car on track 28, so he stopped his car just before it hit the car on track 28; that following plaintiff's car two other cars were coming down the lead destined for tracks beyond track 28; that seeing the danger of a collision between these two oncoming cars and his car, plaintiff tried to climb down the southwest corner of his car by making use of the handhold and ladder located near said corner; that two of the rungs were missing; that this caused plaintiff to fall from said car, by reason of which he sustained serious injury.

The complaint then charges as items of negligence on the part of defendant: Leaving the car on track 28 too close to the lead, failure by the towerman to notify the foreman of the dangerous location of the car on track 28; failure of defendant to move said car on track 28 from its dangerous location; sending the car upon which plaintiff was riding down the lead where it would strike the car on track 28; failure to provide a safe and suitable ladder on the car upon which plaintiff was riding, as provided by the federal Safety Appliance Acts.

Defendant in its answer admitted that it and plaintiff were engaged in interstate commerce at the time of the accident, denied the other allegations of the complaint, and set up assumption of risk and contributory negligence on the part of plaintiff. The reply was a general denial.

It is thus seen that the issues were: Negligence of defendant as to its common-law duties; negligence of defendant as to a statutory duty; assumption of risk and contributory negligence on the part of plaintiff. With the issues thus formed, the case proceeded to trial. The court in its charge to the jury eliminated from consideration a good many of the issues, using the following language:

"The petition was read to you, and there were a good many statements of negligence in that petition. And likewise the answer was read, and there were a good many defenses set up in the answer. Now, much of that has been eliminated, and all of the assignments of negligence, as we lawyers speak of them, contained in the petition, are withdrawn from your consideration, except one, and this is the allegation that the defendant violated what is known as the federal Safety Appliance Acts, in that it failed to have grab hooks or irons, or a ladder, on the side of this car. Plaintiff asserts that there was a failure in that respect and that the plaintiff was injured as a result of that failure. The defendant denies that; and that is the issue which you have to determine. * * * Defenses set up by the answer of the defendant in this case, assumption of risk and contributory negligence, are, by virtue of this narrowing of the issue, eliminated from the case."

The court left to the jury the questions whether defendant violated the provisions of the federal Safety Appliance Acts in failing to have a secure ladder on the corner of the car where plaintiff undertook to climb down; whether such failure by defendant, if it existed, was the direct, proximate cause of plaintiff's injuries.

Counsel for plaintiff states that the court was in error in charging that all assignments of negligence were withdrawn except violation of the federal Safety Appliance Acts. Such was the understanding of the court, however, as distinctly stated in the memorandum on the motion for a new trial; and inasmuch as no exception was taken to the charge of the court in respect to this matter, and no mention was made of this alleged mistake of the court in the motion for new trial thereafter made, we conclude that the court was correct in the position taken.

There are two assignments of error. The first challenges the admission in evidence of an application for employment signed by plaintiff; the second relates to a portion of the charge of the court to the jury. We shall take them up in reverse order. The court charged as follows:

"Now, then, to come to the issue which you are to decide: If you believe that on the 26th day of December the plaintiff was engaged in the performance of his duties and attempted to climb off the top of the car of the defendant that was switched by it in its yard * * * and if you further find that the car was not equipped on the side at one end with secure grabirons or handholds, and that one or more of said grabirons or handholds at the side of the car or end where the plaintiff attempted to climb off was missing, and that while plaintiff was climbing off of said car he fell and injured himself, and that the...