West v. Kurn

• Decision Date: 13 March 1941
• Docket Number: 37170
• Citation: 148 S.W.2d 752
• Parties: WEST v. KURN et al
• Court: Missouri Supreme Court

148 S.W.2d 752

WEST v. KURN et al

No. 37170

Supreme Court of Missouri, First Division

March 13, 1941

E. G Nahler, A. P. Stewart, and C. H. Skinker, Jr., all of St Louis, for appellants.

Mark D Eagleton and Roberts P. Elam, both of St. Louis, for respondent.

OPINION

HYDE, Commissioner.

This is an action for damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. The interstate character of the work was admitted. Plaintiff had a verdict for $ 45,-000, and defendants have appealed from the judgment entered.

Defendants assign as error the refusal of their request for a directed verdict, the failure of plaintiff's main Instruction No. 1 to contain certain alleged essential findings, and excessiveness of the verdict. The negligence charged and submitted was that defendants' switch foreman switched a second cut of cars onto the track, on which plaintiff was riding a former cut (for the purpose of stopping them by means of the handbrakes), in violation of an alleged custom which plaintiff claimed required a signal from him before another switching movement was to be made on the same track. Plaintiff was thrown from the cars and injured when the second cut of cars collided with the first. Defendants contend that 'both the petition and evidence are wholly insufficient to sustain the contention that any such custom and practice existed as to defendants, or that they had any knowledge thereof;' or that plaintiff relied thereon. The allegations concerning the custom made in the petition were substantially in the language of the Instruction No. 1, hereinafter set out. We hold these were sufficient after trial and verdict, without attack thereon by demurrer or motion.

Plaintiff was injured about 2 A.M. on a clear but dark night. Railroad cars could not be seen more than about two car lengths (about 80 feet) distant. Defendants' 'Yale yards, at Memphis Tenn.,' in which plaintiff was injured had thirteen classification tracks about a mile and a half long, running downgrade from south to north, from the south lead tracks at the south end of the yard to the north lead tracks at the north end of the yard. The classification tracks were numbered consecutively from 1 to 13, beginning on the east side of the yard and going west. Cars switched on to these tracks had to be tied down by having the brakes set or by coupling to cars with the brakes set or they would continue north if switched in from the south; or if switched in from the north would roll back out onto the north lead. Plaintiff had worked in these yards from 1925 to 1931 and in 1936 and 1937, during which latter year he was injured.

On the night of his injury, plaintiff was working as long field man of a switching crew. It was one of the duties of the long field man to ride cuts of cars onto clear switch tracks (those with no cars on them) and stop them by setting the hand brakes so they would not go on through the yards and out at the north end. When there were other cars on a track, onto which a switching movement was to be made, it was his duty to see that the couplers were open so that the cars coming in would couple onto and be stopped by those standing with brakes set. Just prior to plaintiff's injury the switch engine was headed north with thirteen cars in front of the engine, just south of the dividing switch between the east and west lead tracks. It was the duty of the short field man, Sullivan, to line the switches of the switch tracks. The switch foreman, Chick, operated the dividing switch; and the pin puller, Scherer, cut off the cars on signal from the foreman. Of course, all signals were by lantern at that time. Three cars (two tank cars with a box car ahead) were cut off and sent onto track 12. Since this was a clear track, plaintiff got on the middle tank car and rode the cut in to set the brakes. The foreman had a tab (or list) showing to what track the cars were to go; and the short field man had a copy of it so he could have the proper switches lined. No other member of the crew had a copy. As soon as the three cars from track 12 cleared the east lead, the foreman kicked a car to No. 3;' then he cut off three refrigerator cars for track 12, 'shoved them down to the switch point, and got just enough slack to cut the cars off; in other words, let them drift down on their own * * * about two miles, two and a half, three miles' per hour. Plaintiff said he set the brake on the middle tank car, then climbed the ladder of the box car and set the brake on it just bringing the cut to a stop when the three refrigerator cars struck it and caused him to be thrown off and injured. He said that he had intended to go back and set the brake on the south tank car before leaving the cut so that it would be sure to stay in place; that he had no trouble with either of the brakes he set; and that he had set these brakes promptly without any delay. When on the box car, plaintiff could not see beyond the south tank car. The foreman estimated the time between the two movements onto track 12 as three or four minutes. He did not time them by watch, and said he 'figured' plaintiff 'should have time to stop the cars, set the brakes and be off of them,' and that he 'thought he had time to set the brakes and be off the cars.' He said that he determined these movements without a signal from anyone.

Plaintiff's testimony was that the 'usual custom and practice prevailing in that yard' was 'never to kick cars in until the long field man had given the signal' to show he had completed his work of setting brakes; that such signal would be given to the short field man, who was the nearest member of the crew; that 'there should have been no movement of another drag of cars into track 12 until you had given some signal that you were through setting the brakes of these cars;' that to his knowledge this practice had never been violated; and that 'it was all right for them to go ahead (switching), * * * just so long as they didn't switch track 12 again.' Defendant's own evidence showed that 'in the north end of the yards * * * when a drag of cars is ridden into a track there by the long field man and he is in there tying them down or setting the brakes * * * it (is) the custom and practice of that long field man to give the short field man, or the foreman, (a) signal after he has finished tying down his cars;' that this was 'so they will know the cars are not coming back out; that you got the car secure and got it stopped;' that 'in the north end of the yard, where you are kicking the cars upgrade, it is the practice for the long field man either to set the brakes or chock them. * * * And the practice on that end of the yard, he is to communicate with some member of the crew before another cut is going up, * * * (because if) the brake is no good and they roll back that he can stop this crew before kicking another car up;' and that 'the situation at the north end requires the long field man to stop the cars before the next switch is made account of the descending grade that way, it might cause an accident, cars rolling down against the side of the cars or hitting the cars that the engine was switching on, * * * (such) collision might cause accidents. * * * It is for the protection of the crew switching with a cut of cars, to prevent cars rolling back that might hit headon or be sideswiped by cars going in on other tracks that would not clear.' However, all of defendants' witnesses denied that this custom applied to the south end of the yards. One of defendants' witnesses, (the short field man) who made a written statement prior to the trial, saying that it did, testified at the trial that this was a mistake. He did say, however, that the custom was for the foreman 'to wait until the short field man gives a signal before kicking more cars to the north;' and that he gave no signal for the movement that injured plaintiff.

We think this evidence was sufficient to make a jury issue as to whether or not there was such a custom in or applicable to the south end of the yards. Mitchell v. Wabash R Co., 334 Mo. 926, 69 S.W.2d 286, 291, 292 [7]; Brock v. Mobile & Ohio R. Co., 330 Mo. 918, 51 S.W.2d 100, 103 [2]; Delaware L. & W. R. Co. v. Berry, 3 Cir., 48 F.2d 1052, 1053 [1]; O'Donnell v. Baltimore & O. R. Co., 324 Mo. 1097, 26 S.W.2d 929, 933 [8]; Koonse v. Missouri Pac. R. Co., 322 Mo. 813, 18 S.W.2d 467, 471 [10]; Armstrong v. Mobile & O. R. Co., 331 Mo. 1224, 55 S.W.2d 460, 465 [5]; St. Louis & S.F.R. Co. v. Jeffries, 8 Cir., 276 F. 73; McClellan v. Pennsylvania R. Co., 2 Cir., 62 F.2d 61, 63 [2]. Plaintiff testified positively that this custom did apply to the south end of the yards, and defendants' reasons for its application to the north end seem to apply, on common sense, to a switching movement starting from either end. Certainly, such a movement from the south end would be even more dangerous than one from the north, to any crew or cars on the north, to any crew or cars on the north leads, because (if it could not be stopped and made secure) it would come out there with momentum from a mile and a half downgrade, if it was not stopped or was started again by being struck by a second movement. Moreover, it seems reasonable to believe that such a custom at...