Thompson v. St. Louis & S. F. R. Co.

• Decision Date: 20 February 1917
• Docket Number: No. 17701.,17701.
• Citation: Thompson v. St. Louis & S. F. R. Co., 192 S.W. 1034, 270 Mo. 87 (Mo. 1917)
• Parties: THOMPSON v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Supreme Court

192 S.W. 1034

270 Mo. 87

THOMPSON v. ST. LOUIS & S. F. R. CO.

No. 17701.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Appeal from Circuit Court, Mississippi County; C. H. Faris, Judge.

Action by Andrew J. Thompson against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield (Boone & Lee, of Charleston, of counsel), for appellant. David W. Hill, of Poplar Bluff, and Ernest A. Green, of St. Louis (Russell & Joslyn, of Charleston, of counsel), for respondent.

BLAIR, J.

Respondent was a brakeman employed by appellant, and was injured in a derailment. He recovered judgment in the Mississippi circuit court, and this appeal followed.

Appellant's tracks at Delta run east and west. On the north side of the main line is a side track about one-third of a mile in length and a little nearer the main line track than in the usual construction. At each end it connects with the main line by switches provided with locks. Nearly 200 feet from the west end of this side track is what is called a crossover or intermediate track. It leads from the main line to the side track. Its west end connects with the side track, and its east end with the main line. At the time respondent was injured an east-bound train on which he was acting as brakeman had stopped at Delta. One car near the rear of the train was "spotted" at the station, which was just west of the west end of the side track. The train, nearly as long as the side track, extended east along the main line to a point several hundred feet beyond the east or main line switch of the crossover. An order was received to "pick up" a car standing upon the side track, and respondent uncoupled the engine and proceeded with it to the switch at the east end of the side track. This switch he unlocked and opened, and the engine moved westward upon the side track. On this track there were three bunk cars, left for employés, and farther west was the car sought. There is evidence this car was standing west of the side track connection with the crossover, and other evidence that it stood about opposite the side track crossover switch. The engine backed westward along the side track, and was coupled to the first of the bunk cars, and then propelled the three westward until the car sought was reached, respondent riding upon the south side of the bunk car farthest from the engine and upon the side next the main line. The side track crossover switch stand was on the north side of the side track. The rear bunk car was coupled to the car ordered to be "picked up" and the coupling made by impact. Respondent testified the first attempt failed, and that the car was driven west "into the main line train." There was evidence tending to show this car was, when the coupling was finally made, considerably over 100 feet west of the crossover switch stand on the side track. There was evidence to the contrary. The engine, drawing the four cars, then started eastward for the main line, and respondent began to climb the ladder upon the south side of the rear car, that being on the side next the main line and nearest the cars in the train standing on the main line track. When the car on which respondent was riding reached the crossover switch instead of continuing along the side track, along which the engine was proceeding, it started down the crossover and struck a car in the train on the main line, catching respondent between the tops of the colliding cars and severely injuring him. There was evidence tending to show that the engine backed some of the cars past the switch connecting the crossover track with the side track, and that that switch was uninjured, but that it could not have been so had cars been backed over it while it was set for the crossover track; also to show that some of the cars had, after the engine started east, passed over the switch points and continued eastwardly upon the side track; that at the time the car on which respondent was riding reached the crossover switch it was moving 10 or 12 miles per hour; there was evidence that unless the lever used to turn the cross-over switch was in the notch provided to hold it, the jolting of cars passing over the switch might throw the switch, and evidence that the lever on this particular switch would be jolted out of such notch by cars passing over the switch; that this was its condition after the injury to respondent, and that the switch was then in the condition it was in at the time of the accident and in which it had been long prior thereto. It was shown the switch stand had a place for a lock, and that a lock could have been supplied for 40 cents, and would, if in use and in place, have prevented the injury; but that such lock was not in use and had never been used on that switch. There was in evidence a company rule requiring main line switches to be locked, but no rule was offered which had any reference to crossover switches at the end connecting with a side track. There was evidence both ways on the question whether well-managed railroads customarily maintained locks on such switches.

The switch stand targets were rusty and their colors nearly obliterated, but differences in shape were designed to indicate whether the switch was set for the crossover or the side track. Respondent testified he rode upon the side of the car next the main line because the engineer was upon the right-hand side of the engine and signals could be given him directly only on that side; that this was in conformity to the rule or, at least, regular custom, in braking when the track was so the engine could be seen from the right-hand side of the car; he said he did not look at the switch, as the engine backed down, but did look, as was his duty, at the switch points and they were lined for the side track; and that they could not have been as he saw they were unless the switch lever was in the notch.

Respondent's position is that the switch was thrown by the jolting of the cars ahead of the one he was riding on, and that it resulted from the negligent speed of the train and the absence of a lock on the switch. Appellant contends there was no negligence, that respondent assumed the risk, and that his injury resulted from his contributory negligence. Other facts may be stated in the course of the opinion.

I. This case was tried before Judge C. B. Faris, now of this court. While the motion for new trial was pending, he was succeeded by Judge Finch. Judge Finch overruled the motion. Appellant now urges he had no power to do so. The substance of the argument advanced is that the motion assailed the verdict as against the weight of the evidence; that this question called for an exercise of discretion by the judge, and that the trial judge, alone, was in position to exercise such discretion in ruling upon it. Both divisions of this court have held the contrary. State ex rel. v. Perkins, 139 Mo. loc. cit. 117, 118, 40 S. W. 650; Fehlhauer v. St. Louis, 178 Mo. loc. cit. 653, 77 S. W. 843; Richardson v. Agr. & Mec. Ass'n, 156 Mo. loc. cit. 412, 413, 57 S. W. 117; also Glaves v. Wood, 78 Mo. App. 351. Appellant relies on St. Francis Mill Co. v. Sugg, 142 Mo. 364, 44 S. W. 249. That case applied the rule in force prior to the amendment of the statute discussed in State ex rel. v. Perkins, supra, The motion considered was one filed prior to the amendment. The third paragraph of the syllabus indicates the ruling actually made. Defendant's right, in that case, under the rule in force, accrued prior to the amendment. It was not a mere matter of procedure. It was then a right to a new trial. That case is no authority in this.

II. Appellant contends the case should not have gone to the jury.

(a) The first ground advanced is "that the methods complained of were those adopted and practiced by railroads generally." The record does not show this to be true as a matter of law. When such usage is relied on it must be proved. The evidence in this case on this issue was conflicting, and it was for the jury to determine the fact. Yost v. Railroad, 245 Mo. loc. cit. 244, 245, 149 S. W. 577. In Trebbe v. American Steel Foundries Co., 185 S. W. loc. cit. 182, this court, considering this question in connection with Chrismer v. Bell Telephone Co., 194 Mo. loc. cit. 208, 209, 92 S. W. 378, 6 L. R. A. (N. S.) 492 (a case upon which appellant relies), said:

"...