Timmerman v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 09 July 1951
• Docket Number: No. 41944,No. 2,41944,2
• Citation: 241 S.W.2d 477,362 Mo. 280
• Parties: TIMMERMAN v. TERMINAL R. R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

Page 477

241 S.W.2d 477

362 Mo. 280

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

No. 41944.

Supreme Court of Missouri, Division No. 2.

July 9, 1951.

Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.

Mark D. Eagleton, Wm. H. Allen, St. Louis, for respondent.

ELLISON, Chief Justice.

The defendant-appellant Terminal Railroad Association appeals from a judgment for $35,000 recovered against it by the plaintiff-respondent Timmerman under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. in the circuit court of the city of St. Louis, for personal injuries sustained by him while in the service of that railroad as a switchman. For the purpose of throwing a switch he had just alighted from the front footboard of a Terminal switch engine into the eight foot space between the track on which it was moving and a parallel track, when a rapidly moving Wabash diesel locomotive on the latter track struck him and caused the injuries for which he sued. The grounds of negligence assigned were that: (1) the space between the two tracks was insufficient to afford a reasonably safe place to work; (2) the appellant negligently failed to warn respondent of the approach, proximity and movement of the Wabash locomotive; (3) and negligently failed to stop its own locomotive before appellant was injured.

Appellant makes seven assignments of error here: (1) that respondent failed to make a submissible case for the jury; (2) that respondent's charge of appellant's failure to furnish him a safe place to work, based on the close proximity of the two railroad tracks, is unfounded in law and fact; (3) that the trial court erred in overruling appellant's challenges to the competency of two veniremen; (4) respondent's instruction No. 1 was erroneous in three respects; (5) the trial court erred in refusing to give appellant's instructions F or G, or H or I; (6) the argument of respondent's counsel, duly objected to, was prejudicially erroneous; (7) the verdict was excessive.

Subjoined is a photograph of the scene of the casualty, appellant's Exhibit A, the camera facing south and the picture looking north with two parallel railroad tracks extending in that direction toward the viewer. The left track is called the Wabash track, and the next track to the right the Terminal track. The strip of land they occupy is Second Street in St. Louis and the tracks were placed there by sanction of a city ordinance. About midway in the space between them will be seen the railroad switch stand which figured in respondent's injury. It is practically flush with the ground and connected with the Terminal track. It was manually operated and served to pass cars between the Terminal track and the S curve track coming in from the southwest.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the morning of the casualty about 7 a. m. appellant's switch engine was pulling twelve freight cars northerly over the S curve switch track intending to place them on the Terminal track. Respondent and the switch foreman and another switchman all were on the front footboard of the engine, respondent being on the east side nearest the switch that had to be thrown. The engineer and fireman were at their positions in the engine cab. Respondent, who said he had had 15 years experience as a switchman, testified he stepped off the footboard in the usual way to throw the switch, after the front of the engine had passed it about 5 feet and was moving about 3 miles perhour. The rear end of the engine was still on the curved track swung some to its left, thereby causing the front end to pivot 6 to 10 inches in the other direction toward the switch stand as respondent was alighting. Without any warning as his right foot reached the ground he was suddenly struck by a Wabash engine, which had come up unnoticed at rapid speed from the south on the parallel track.

On the point that the 8 foot space between the two parallel tracks was insufficient to make the switch stand a safe place to work, the following evidentiary showing was made by respondent. Both the tracks were standard gauge. That is, each was 4 feet 8 1/2 inches wide between the rails. Sixty years earlier when the switch tracks were laid engines and cars were much narrower than now. Some box cars now in use are 11 feet 6 inches wide. The overall outside width of the switch engine was 10 feet 7 inches. Deducting from this the width of the track, made the overhang of the engine outside the rails 32 inches on each side. The overhang of the Wabash diesel locomotive was the same. When the two engines passed, a 32 inch overhang space was cut off on each side of the 8 foot space between the tracks, reducing the open space by about 64 inches to 2 feet 8 inches. Respondent contends that was wholly inadequate, and that a working space of about four feet was required in alighting from the moving engine for switching operations. This consisted of about 18 inches representing the length of the partially extended arms in alighting, and 28 inches for the width of the body in swinging around.

On the other hand the appellant Terminal developed the fact that its switch track was constructed in 1890 before the Wabash track was built; and that both tracks were installed on Second Street under sanction of a city ordinance. The Terminal asserts these facts exempted it from responsibility for the dangerous proximity of the two switch tracks. And it further maintains the respondent's own gross negligence was the sole cause of his injury, in that he stepped from the footboard of the Terminal's switch engine into the path of the oncoming Wabash locomotive without looking back to see whether traffic was approaching on that track. Thus appellant acquits both itself and the Wabash of negligence.

And the appellant Terminal further points out that respondent on the witness stand conceded he was familiar with the switching terrain at the locus in quo, and knew trains ran rapidly over the Wabash track, usually sounding a warning signal for a Mound Street crossing only 160 to 200 feet south of the switch stand, though no such warning was given on this occasion. And reaspondent further admitted he had made the same switching movement many times before and had followed a practice of looking back south before getting off the switch engine's footboard. But on this occasion he did not look back as or immediately before he alighted, because he was then getting information on the next switching movement from the switch foreman, Baker. However, he said he had looked when the switch engine was 20 or 25 feet further sough and at that time saw no train on the Wabash track within the 75 foot range of his vision.

Appellant's first point is, as stated above, that the two railroad tracks here involved were installed on Second Street in St. Louis 60 years ago under sanction of a city ordinance. It contends those facts relieved it of responsibility for the dangerous proximity of the two switch tracks, notwithstanding such proximity made the switch stand between them unsafe as a place of work. On that point it cites Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787, 49 S.Ct. 490, 73 L.Ed. 957. We think the case is not in point. Briefly the facts there were that the plaintiff Driggers, a switchman, stepped from the footboard of a switch engine in motion, and was struck by the engine of a passenger train passing on a parallel track. The clearance between the two tracks was less than eight feet. The conductor of the switch crew attempted by signal to warn Driggers that the passenger train was approaching, but the signal was the same as one used for backing up. Driggers misunderstood it and stepped off the train he was on to throw the switch when he was truck by the passenger train.

The U. S. Supreme Court held his death was attributable solely to his own negligence and not to any negligence of the railroad company. We think the case is not controlling here. Granting the two switch tracks on Second Street in this case were placed there under sanction of a city ordinance, that fact did not relieve the reilroads using the tracks from exercising due care in operating over them. In the Driggers case the conductor did all he could to warn Driggers of the approach of the passenger train and Driggers misunderstood the warning and got down between the tracks without looking for the approach of the other train. In this case the Wabash engine appeared suddenly without warning and traveling at rapid speed. None of the crew attempted to protect Timmerman when he alighted to throw the switch. It is obvious that the Wabash engine then was close upon him. If the engineer or fireman of the switch engine had timely warned him of the approach of the Wabash engine he could have avoided the danger. And conceding he was guilty of contributory negligence, we cannot say as a matter of law that his negligence was so gross as to make his own conduct the sole cause of his injury.

Appellant asserts the facts in this case do not bring it within the operation of the safe place rule. It contends that since the two switch tracks were built in Second Street in St. Louis under sanction of a city ordinance, therefore it (the Terminal) cannot be convicted from the mere use of its track, even though that track was too close to the Wabash track, citing Booth v. St. Louis, I. M. & S. Ry. Co., 217 Mo. 710, 725-726(6), 117 S.W. 1094, 1099; Southern Pac. Co. v. Berkshire, 254 U.S. 415, 418(3), 41 S.Ct. 162, 65 L.Ed. 335; Chesapeake & O. Ry. Co. v. Leitch, 276 U.S. 429, 48 S.Ct. 336, 72 L.Ed. 639, and other cases.

In the Booth case, first cited, a switchman of the defendant railroad was standing on top of an unusually tall box car while it was being switched on a track in St. Louis which was crossed by the track of a street railroad company under a city franchise. The streetcar track had suspended thereabove a trolley wire charged with electricity. The...