Westover v. Wabash Ry. Co.

• Decision Date: 03 March 1928
• Docket Number: No. 26755.,26755.
• Citation: 6 S.W.2d 843
• Parties: WESTOVER v. WABASH RY. CO.
• Court: Missouri Supreme Court

6 S.W.2d 843

WESTOVER v. WABASH RY. CO.

No. 26755.

Supreme Court of Missouri, Division No. 1.

March 3, 1928.

Motion for Rehearing Overruled April 10, 1928.

Motion to Transfer to Banc Overruled May 18, 1928.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by J. E. Westover against the Wabash Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition of a remittitur.

N. S. Brown and Homer Hall, both of St. Louis, for appellant.

Douglass & Inman, of St. Louis, for respondent.

RAGLAND, J.

At the times hereinafter referred to appellant was a common carrier by railroad and as such was engaged in both interstate and intrastate commerce. The respondent was in its employ as a yard switchman, and while so employed sustained personal injuries through its alleged negligence. To recover the damages accruing to him therefor he instituted in the circuit court of the city of St. Louis the present action, under the Employers' Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665).

The appellant maintains across the river from St. Louis, near Brooklyn, Ill., extensive switch yards; there are three of them, more or less independent of each other, but connected by four continuous parallel tracks of railroads, lying adjacent to the bank of the river. In the north yard, also called the east-bound yard, there was a track set apart for cars which needed light repairs; in its vicinity there was a switchmen's shanty. The roundhouse was located in the middle yard; in that yard was done most of the switching, it being the yard in which the majority of incoming trains were "broken up" and their cars redistributed according to their several routings.

On November 24, 1923, the respondent was working with a switching crew consisting of an engineer and fireman, two helpers, and a foreman. Because of the absence of the regular foreman, respondent was acting as foreman. The crew were under his direction and control in doing the work; he himself followed orders given by the yardmaster. Their hours of work were from 7 o'clock in the morning until 3 in the afternoon. They were allowed an intermission of 20 minutes for lunch. They suspended for lunch when directed so to do by the yardmaster. They ate their lunch on the appellant's premises; the switchmen usually at the switchmen's shanty, the engineer and fireman at the roundhouse. It was the custom or practice for each of them to put his lunch bucket in a box under the fireman's seat in the engine cab before the engine left the roundhouse in the morning. When lunch time was announced, the fireman procured the switchmen's buckets from under his seat and gave them to them.

Respondent was 35 years old; he weighed about 195 pounds; and his health was good. He had been employed in appellant's yards as switchman three years, but he had done most of his work in the middle yard. Just before noon on the date mentioned he was ordered by the yardmaster to take a car from the middle yard and put it on the repair track in the north yard. The car was loaded with merchandise en route from New York to Missouri. The engine was attached and the car pushed north to a point in the north yard where the repair track connected with the lead. From the point of this connection the repair track extended in a southeasterly direction. The box car in need of repair was pushed on down some distance on the repair track; the engine was then detached and started backing up the track in a northerly direction. Respondent had dropped off the car being switched before it reached its destination. At the time the engine started backing north, he was four or five car lengths away on the west side of the track. He stepped across to the east side and signaled the crew that the yardmaster had directed them to go to lunch. When the engine came along, moving at the rate of about three miles an hour, he stepped up on the lower step of the steps leading from the ground to the gangway between the tender and the engine cab and asked the fireman for his lunch. In stepping upon the step he took hold of the handhold on the tender with his right hand and the one on the engine cab with his left. The handholds were about even with his shoulders. While so standing waiting for the fireman to hand him his lunch bucket, he came in contact with a high switch stand located near the track, which caused him to be thrown to the ground. The wheels of the engine ran over the toes of his left foot and his right forearm.

It was alleged in the petition:

That at the time plaintiff "was injured, as herein alleged, he was at work for the defendant in said yard as a switchman or switch foreman in the regular scope of his employment and was employed, at the time injured, in interstate commerce."

And further:

"That said car was loaded and was en route to the state of Missouri, and that while plaintiff was engaged in said work, and while he was standing on the steps of the engine tender used in switching said car and on the steps where it was customary and usual for switchmen to ride when doing switching for the defendant, he came in contact with a switch stand near the defendant's aforesaid lead track and was seriously and permanently injured."

The negligence counted upon was reiterated in different phraseology, but the following excerpt from the petition epitomizes it:

"Plaintiff further says that the injuries which he sustained as aforesaid were directly caused on account of the negligence of the defendant in failing to furnish plaintiff a reasonably safe place in which to work and reasonably safe tools and appliances with which to work, in this, to wit, that defendant negligently located and maintained the aforesaid switch stand so close to the track as to be dangerous to plaintiff and other switchmen in the performance of their duties."

The answer consisted of a general denial and a plea of assumption of risk. It further alleged that the plaintiff's injuries were caused solely by his own negligence in the following respects:

"(1) He stood and rode upon the tank step when said engine was moving and when the plaintiff saw and knew, or by the exercise of reasonable and ordinary care should have seen and known, that said engine was approaching said switch stand and that he was in danger of being struck thereby, if there was any such danger.

"(2) He leaned away from and permitted his body to extend outward from said tank and tank step an unnecessary distance, * * * when there was ample room for his body to clear said switch stand as he well knew."

The reply was general denial. On the trial of the cause to a jury, a verdict was returned for plaintiff assessing his damages at $30,000. From the judgment entered in accordance therewith, this appeal was allowed.

The foregoing sufficiently outlines the case. Other facts will be stated where necessary in the course of the opinion.

Appellant assigns error under twenty separate heads. They may be grouped as follows: (1) Refusal of defendant's demurrer to the evidence; (2) erroneous instructions given at the instance of the plaintiff; (3) miscellaneous errors; (4) denial of defendant's petitions for removal; and (5) excessiveness of the verdict. With the foregoing classification in mind, we will endeavor to cover all of the assignments in the paragraphs which are to follow.

I. Appellant seems to base its contention that it was entitled to a directed verdict at the close of all the evidence principally on three grounds: (1) There was no negligence on the part of defendant; (2) plaintiff assumed the risk incident to the location of the switch stand; and (3) he wholly failed in his proof that he was employed in interstate commerce at the time of his injury. It is said that these deductions must be drawn from the evidence as a matter of law.

1. It was a custom and practice of long standing in appellant's yard for switchmen to step up on the lower step of the steps leading up to the gangway between the engine and tender, while the engine was in motion, for the purpose of communicating with the engine men when the communication was of such character that it could not be conveyed by signal. The switch stand in question was something more than six feet high; it stood three feet and ten inches from the track; and there were but fourteen inches of clearance between the target and the side of a passing car, or engine tender, of the ordinary size and type. High switch stands are usually and customarily located at least six feet from the nearest track. That distance is regarded as the standard for that purpose, and is the one adopted generally by railroads. The one involved in this case was not connected with the rails of the track next to it; it controlled switch points in the second track from it. There was no operating or other necessity for its being located closer to either track than the standard distance referred to.

With respect to the facts just enumerated, there was no essential conflict in the evidence. It was clearly sufficient to take to the jury the question of defendant's negligence. Ford v. Railway Co., 280 Mo. 206, 217 S. W. 294; Fish v. Railroad, 263 Mo. 106, 172 S. W. 340, Ann. Cas. 1916B, 147; Charlton v. Railway Co., 200 Mo. 413, 98 S. W. 529; Murphy v. Railway Co., 115 Mo. 111, 21 S. W. 862.

2. Plaintiff's work for the most part had been done in the middle yard. However, his crew had made frequent, almost daily, trips to the north yard for the purpose of taking cars to the repair track. The high switch stand which subsequently occasioned his injury was plainly visible to him on such trips. It was calculated to attract attention because there was but one other of the same kind in the north yard. He testified that, while he was familiar in a general way with its location, he did not know of its unusual proximity to the track; that he had never had occasion to note its position in that respect; and that his attention had never been...