Vaughan v. St. Louis Merchants' Bridge Terminal Ry. Co.
| Decision Date | 18 May 1929 |
| Citation | 18 S.W.2d 62,322 Mo. 980 |
| Parties | E.C. Vaughan v. St. Louis Merchants Bridge Terminal Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.
Affirmed (upon condition).
J. L Howell and R. E. Blodgett for appellant.
(1) The court erred in refusing to give to the jury the instructions in the nature of demurrers to the evidence. Railroad Co v. Allen (U.S. Sup.), 72 L.Ed. 267; Randall v Railroad, 109 U.S. 478; Aerkfetz v. Humphreys, 145 U.S. 418; Railroad Co. v. McDade, 135 U.S. 554; Railroad Co. v. Horton, 233 U.S. 492; Railroad Co. v. McDade, 191 U.S. 68; Kane v. Railroad, 128 U.S. 94. (2) The verdict is grossly excessive. Young v. Lusk, 268 Mo. 625; Hulse v. Ry. Co., 214 S.W. 150; Henson v. Kansas City, 277 Mo. 443; Turnbow v. Rys. Co., 277 Mo. 644; Greenwell v. Railroad Co., 224 S.W. 404; Kibble v. Railroad Co., 227 S.W. 42; Parks v. U. Rys. Co., 235 S.W. 1067; Miller v. Schaff, 228 S.W. 488; Mattice v. Term. Railroad Assn., 270 S.W. 306; Williams v. Fleming, 284 S.W. 794; Henry v. Railroad Co., 282 S.W. 423; Lovett v. Term. Ry. Co., 295 S.W. 89; Spencer v. Railroad Co., 297 S.W. 353; Shannon v. Light & Power Co., 315 Mo. 1136; Stahl v. Frisco, 287 S.W. 628; Rose v. Frisco, 315 Mo. 1181.
Douglass & Inman, John H. Bradley and Allen V. McReynolds for respondent.
(1) An employee has a right to assume that a master or his employees representing him will not be negligent, and act on that assumption. Davis v. Scroggins, 284 F. 760; Johnson v. Brick & Coal Co., 276 Mo. 50. (2) It is an act of negligence on the part of a railroad company to leave cars on switch tracks so close to a lead track as to endanger the safety of its employees passing it while riding on the side of a car in the usual and customary place for employees to ride, and especially when it is the rule, custom and practice to leave cars with sufficient clearance for employees riding on the side of other cars to pass it in safety. Redmond v. Railroad, 225 Mo. 721; Roberson v. Railroad, 213 S.W. 873; Railroad v. Wright, 235 U.S. 376; Director General v. Bennett, 268 F. 767; Railroad v. Hammond, 7 F.2d 1010; McKinsee v. Railroad, 211 Mass. 586; Pierce v. Railroad, 216 Mass. 129; Parmelee, Admr v. Railroad, 215 Mass. 294. (3) An employee does not assume the risk of injury caused by the negligence of a railroad company or of its employees, unless he knows of the danger, or that the danger is so open and obvious that he is presumed to know it, and also, appreciates the risk and danger arising therefrom. Reed v. Director General, 258 U.S. 92; Railroad v. Swearingen, 196 U.S. 51; Railroad v. McDade, 191 U.S. 64; Railroad v. Horton, 233 U.S. 492; Railroad v. Hall, 232 U.S. 101; Railroad v. Ward, 252 U.S. 18; Railroad v. DeAtley, 241 U.S. 315. (4) Assumption of risk arising from the master's negligence is an affirmative defense and must be pleaded in order to be available as a defense. The defendant failed to plead assumption of risk in this case and hence that defense is not available to it. Halt v. Railroad, 279 S.W. 152; Adams v. Railroad, 229 S.W. 795; Railroad v. DeAtley, 241 U.S. 310; Railroad v. Kelley, 241 U.S. 485. (5) The verdict is not excessive, as under the law the amount of damages to be awarded is governed by the Federal law, and when governed by the Federal law verdicts in one state should be commensurate with the verdicts in the Federal courts in other states, in order to maintain uniformity in the law. Railroad Co. v. Kelley, 241 U.S. 485; Ry. Co. v. Candler, 283 F. 881; Bosher v. Railroad, 15 F.2d 388; Railroad v. Fletchtner, 300 F. 382; Otos v. Railroad, 239 U.S. 349; Railroad v. Carnahan, 241 U.S. 241; Railroad v. Anderson, 291 S.W. 590; Railroad v. Comb, 250 S.W. 714; Roeder v. Railroad, 165 N.Y.S. 167.
This is an action for damages for personal injuries alleged to have been sustained by E. C. Vaughan while employed by the St. Louis Merchants Bridge Terminal Railway Company as assistant yardmaster in its yards at Madison, Illinois.
Plaintiff went to trial on his amended petition alleging therein that at the time he was injured defendant was engaged in interstate commerce and plaintiff was employed by defendant in interstate commerce. It was further alleged in this petition that "defendant maintains a large switch yard of many tracks in or near the city of Madison in the State of Illinois; that one of said tracks is known as No. 50 lead track, which runs, generally speaking, in a north and south direction; that other tracks connect with it; that tracks 57 and 58 connect with said lead track on the west side; that tracks 57 and 58 are parallel with each other and, except near the lead track, are far enough apart so that a car can be placed on track 57 a short distance from the lead track in a position where an employee, passing it while riding in the usual and customary place for employees to ride on the side of a car or train while switching in said yard as they were being run along the lead track and onto track 58, without danger of being struck by it; that it was the rule, custom and practice in said yard on and prior to November 26, 1924, in placing cars on track 57 and other tracks in said yard, to place them far enough from the lead track so they would not strike employees riding in the usual and customary place for employees to ride on the side of cars that were being switched in said yards along the lead track and on other tracks; that plaintiff on said date and prior thereto knew of said rule, custom and practice." Plaintiff further alleged "that on or about the twenty-sixth day of November, 1924, he was employed by the defendant as an assistant yardmaster and worked in said yards; that on the night of said date, while it was dark, the plaintiff, in the performance of his duties, was riding in the usual and customary place for employees to ride on the side of a car or cut of cars that was being shoved north on the lead track and onto track 58 aforesaid to be coupled to other cars standing on track 58 in order to make up a train on track 58, which said train was to be hauled from said yard to the city of St. Louis, Missouri; that, while he was riding on the side of one of the cars in the said cut of cars in the usual and customary place for employees to ride on a car or cut of cars while switching them in the yards, and while passing track 57, he was struck by a car on track 57 that had been left by defendant in a position so close to the lead track that it would not clear an employee riding on the side of a car or cut of cars that was being switched along the lead track past track 57 and onto track 58; that as a result of being struck by said car plaintiff was knocked off the side of the car and seriously and permanently injured."
Defendant's answer was a general denial.
Plaintiff's evidence tended to prove that he was hurt about three o'clock in the morning of November 26, 1924; that he was about forty-one years of age at that time and was earning $ 225 a month; that he was assistant yardmaster of what was termed the south end of the westbound yards under the supervision of night general yardmaster Knight and assistant yardmaster Durkee who had an office in the north end of the westbound yard; that the westbound yard contained about forty tracks upon which cars were classified and prepared for transportation to the west side of the river into the State of Missouri; that plaintiff had been in the employ of defendant in three different departments for about eighteen years; that on the night in question plaintiff started to work at eleven o'clock P. M. and was supposed to continue until seven o'clock A.M.; that a track called No. 50 lead ran directly north and south from which numerous switch tracks extended towards the west; that shortly before plaintiff was injured he was instructed by his superior, assistant yardmaster Durkee, to take three cars by means of pusher engine number 134 with its crew, consisting of an engineer and fireman, and place these cars, together with the caboose, on the rear of track 58 and couple them on to the "Frisco high-line," a train that is made up in the Madison yards and run to the Frisco at Twenty-third Street, St. Louis, Missouri; that after placing these cars on track 58, respondent went back to his office and telephoned the assistant yardmaster that this had been done; that about forty-five minutes later plaintiff was advised by his superior, this assistant yardmaster, that there was a broken train line sixteen cars deep on track 58 and that he should have the lead crew operating engine 168 throw out the bad-order car; that by "a broken train line" it was understood that there was a leakage of air in a car in the train; that under such circumstances the bad-order car must be set out so that the air could be connected throughout the entire train; that upon receiving this advice plaintiff walked down to track 58 to inspect the rear of this train to see that the hose was all coupled; that as he walked down to the sixteenth car the conductor of the transfer crew that was getting the train ready advised plaintiff that there was also a broken train line eighteen deep; that upon receiving this information he walked back to the office and phoned his superior about the additional bad-order car and was told to have the lead crew throw out both bad-order cars; that the method of throwing out the bad-order cars was to connect up an engine with the end of the train and pull back out on lead 50; that after this was done the bad-order car farthest away from the engine would be kicked onto another track and the good car next to it uncoupled and kicked onto another track so the two bad-order cars should be placed upon...
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