Wilday v. M.-K.-T. Railroad Co.

• Decision Date: 01 February 1941
• Docket Number: No. 36653.,36653.
• Parties: R.E. WILDAY v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

147 S.W.2d 431

R.E. WILDAY v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.

No. 36653.

Supreme Court of Missouri.

Division Two, February 1, 1941.

Appeal from Johnson Circuit Court. — Hon. Leslie A. Bruce, Judge.

AFFIRMED.

Carl S. Hoffman, W.H. Martin and Montgomery, Martin & Montgomery for appellant.

(1) The court erred in giving to the jury Instruction 1 in behalf of the plaintiff. (a) The instruction is bad because it is vague, misleading and confusing and because it requires the jury to find negligence on the part of the engineer when there was no negligence on his part shown by the evidence under the theory that the case was presented. Freeman v. Berberich, 60 S.W. (2d) 393; Gundelach v. Compagnie Generale Transatlantique, 41 S.W. (2d) 1; Barr v. Mo. Pac. Ry. Co., 375 S.W. (2d) 927; 64 C.J. 666. (2) The court erred in refusing to give Instruction D as prayed for by defendant. (a) It was error to refuse to give this instruction because by refusing it, prejudicial and damaging evidence, against the defendant, was left in the case which should have been withdrawn from the consideration of the jury. (3) The court erred in refusing to give Instruction G as prayed for by defendant. (a) It was error to refuse to give this instruction because by refusing it, prejudicial and damaging evidence, against the defendant, was left in the case which should have been withdrawn from the consideration of the jury. (4) The court erred in refusing to give defendant's Instruction B in the form of a directed verdict, offered at the close of the case. (a) The evidence in this case is contrary to the physical facts and is inherently impossible and the inferences deducible therefrom are so opposed to all reasonable probability as to be manifestly false. Payne v. C. & A. Ry. Co., 136 Mo. App. 579; Spiro v. St. Louis Transit Co., 102 Mo. App. 250; Roseman v. United Ry. Co., 251 S.W. 106; Hook v. Mo. Pac., 162 Mo. 569; Spohn v. Mo. Pac., 87 Mo. 74; Grange v. C., E. & I. Ry. Co., 69 S.W. (2d) 955; Nufer v. Met. St. Ry. Co., 182 S.W. 792; Hardin v. Ill. Cent. Ry. Co., 70 S.W. (2d) 1075.

W.W. McCanles and Fred F. Wesner for respondent.

(1) If the evidence did not show negligence on the part of the engineer it was wholly immaterial because, admittedly there was substantial evidence disclosing negligence of the fireman directly causing the injury. Kloeckener v. St. Louis Pub. Serv. Co., 53 S.W. (2d) 1043; Hudson v. K.C. Ry. Co., 246 S.W. 576; Cage v. Payne, 240 S.W. 156; Demaray v. M.-K.-T. Railroad Co., 50 S.W. (2d) 130; Spencer v. Q., O. & K.C. Ry. Co., 317 Mo. 492, 297 S.W. 353; Larey v. M.-K.-T. Railroad Co., 64 S.W. (2d) 681; Connole v. East St. L. & S. Ry. Co., 102 S.W. (2d) 589; State ex rel. v. Shain, 124 S.W. (2d) 1197; McDonald v. K.C. Gas Co., 59 S.W. (2d) 37; Smith v. So. Ill. & Mo. Bridge Co., 30 S.W. (2d) 1077; Hoelzel v. C., R.I. & P. Ry. Co., 85 S.W. (2d) 133. (2) The court did not err in refusing to give Instructions D and G as prayed for by the defendant. Ostertag v. U.P. Ry. Co., 169 S.W. 1; Jenkins v. Wab. Ry. Co., 73 S.W. (2d) 1002; Freeman v. Term. Railroad Assn., 107 S.W. (2d) 37; Kidd v. C., R.I. & P. Ry. Co., 274 S.W. 1073. (3) The court did not err in refusing to give defendant's Instruction B in the form of a directed verdict. Dempsey v. Horton, 84 S.W. (2d) 624; State ex rel. v. Shain, 105 S.W. (2d) 919; Arnold v. Alton Ry. Co., 124 S.W. (2d) 1092; Freeman v. Term. Railroad Assn., 107 S.W. (2d) 36; Schupback v. Meshevsky, 300 S.W. 465; Cluck v. Abe, 333 Mo. 1000; Maurize v. Western C. & M. Co., 321 Mo. 378; Kibble v. Q., etc., R.D. Co., 285 Mo. 603; Kiefer v. St. Joseph, 243 S.W. 104.

BOHLING, C.

R.E. Wilday recovered a judgment of $16,000 against the Missouri-Kansas-Texas Railroad Company, a corporation, for the loss of his left leg and other personal injuries. The action is under the Federal Employers' Liability Act. The railroad appealed and presents issues involving the sufficiency of the evidence, Wilday's main instruction and the refusal of certain withdrawal instructions.

Respondent, who had been employed by appellant for about twenty years as a brakeman, was head brakeman on one of appellant's local freight trains and was injured at Moody, Kansas, October 26, 1936, when his left foot was temporarily caught between the reinforcing (commonly called guard) and switch-point rails of a "channel" switch. Appellant's main line extends in a generally north and south direction at Moody, and is intersected by the Missouri Pacific railroad tracks. East of the main line track is a passing track. Appellant's train was traveling south, the engineer being on the west side. At Moody, an oil tank car billed to St. Louis, Missouri, was to be switched to the interchange track, which is east and off of the passing track, for delivery to the Missouri Pacific. The train stopped north of the south passing track switch and respondent "cut" the train, gave the "go ahead" signal, rode the oil tank car to the switch, and stopped the cars so that the north end of the oil tank car was about 8 or 10 feet south of the switch. Respondent crossed the track, north of the cars, to the switch stand east of the track. It was respondent's intention to ride the cars to the interchange track. There is testimony of record that in switching operations brakemen may give signals to the fireman or to the engineer; that respondent could have given the signal to the fireman, but that it was the practice and custom to work on the engineer's side whenever practicable; that due to the curvature to the left of the passing track, a brakeman, to be in a conspicuous place to give signals as the cars move around the curve, would have to be on the engineer's side. The switch point on the west side of the main line track deflected the cars east to the passing track and the west switch-rail point was considerably worn apparently, from the photographs, for a distance of a foot or more back. It was also established that in the circumstances engines move only on signal. Respondent testified that he, after some difficulty, threw the switch for the passing track; that he at no time signaled for any movement of the cars; that he started to cross the track to look at the switch and place himself on the engineer's side of the cars; that he stepped on something which threw him off balance, caused his left foot to cut short its step and to come down on the east reinforcing and switch-point rails; that he didn't have time to examine the position of his foot but it dropped in between said rails, seemed to be twisted and was caught; that he tried to jerk it out two or three times but was unsuccessful; that something directed his attention to the fact the cars were backing up on him; that if he had had a second or two more he could have seen how it was and could have removed his foot; that he threw himself to the east of the track and the cars passed over his left leg, necessitating its amputation, and he suffered injuries to his back.

Appellant contends it was a physical impossibility for respondent to have temporarily caught his foot, as respondent testified, in the space between the reinforcing and switch-point rails of the switch.

The reinforcing rail extended parallel to and west of the switch-point rail for approximately 9 feet. It had what is known as a "ball" on top. The switch-point rail had no "ball" at the point but as it extended north gradually tapered out to a regular rail. Separating these rails and spaced approximately equidistant along the rails were three blocks, approximately 3 inches wide. Respondent testified his foot was caught a few inches north of the south block, which was approximately a foot north of the point of the switch-point rail. The soles of respondent's shoes were approximately 4-3/8 inches wide at the widest point. The distance between the two rails was approximately 4-½ inches at the ball or top of the rails, but below the ball the distance was approximately 6 inches, and the distance between the flanges on the bottoms of the rails was about 2 inches.

The record discloses that at the trial the switch rails and a model of the switch rails involved were produced, and that respondent there demonstrated the manner in which he thought his foot became temporarily caught or wedged between the reinforcing and switch-point rails. The record does not detail the exact manner in which this was demonstrated, but we understand the demonstration indicated the sole of respondent's left shoe caught underneath the flange of one of the rails with the other side of his shoe wedged or squeezed tightly against the wall of the opposite rail. During respondent's cross-examination and demonstration with the switch itself, the following occurred: "Q. Start with your foot, how you stepped on it? A. It was my other foot as I said, I stepped on something like that and my toe doubled up or I slipped or something so darn quick I can't tell just how it went in there but it did go in. It will go either way. It can fasten on this side or this side, either way, and you can't pull it out. Q. Turn your foot? A. Right there it is. If I had had a second or two more I could have seen how it was and I could have gotten my foot out. Q. Sure you can hook the sole of your shoe over the edge where you did? A. That is the way it was."

[1] Mindful of the many movements of which the human foot is capable, especially when forced, we think, in view of the demonstration before the jury and counsel's comment thereon, a holding that respondent's catching his foot temporarily between the rails was an impossibility would be an invasion of the province of the jury. The point is ruled against appellant.

[2] Mention is made in appellant's argument of the fact that respondent's foot, after the accident, was not caught and was on the switch-point rail and within an inch of the south spacing block. With the cars moving north appellant argues respondent's...