Willgues v. Pennsylvania R. Co.

• Decision Date: 10 October 1927
• Docket Number: No. 25949.,25949.
• Citation: Willgues v. Pennsylvania R. Co., 298 S.W. 817, 318 Mo. 28 (Mo. 1927)
• Parties: WILLGUES v. PENNSYLVANIA R. CO.
• Court: Missouri Supreme Court

298 S.W. 817

WILLGUES v.PENNSYLVANIA R. CO.

No. 25949.

Supreme Court of Missouri, Division No. 2.

October 10, 1927.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by Ida V. Willgues, administratrix of the estate of Louis M. Willgues, deceased, against the Pennsylvania Railroad Company and another.Case was dismissed as to such other defendant, and judgment rendered against named defendant, from which it appeals.Affirmed on condition of remittitur.

Harkless & Histed, of Kansas City, for appellant.

C. A. Randolph and Rosenberger, McVey & Freet, all of Kansas City, and John C. Sheriff, of Pittsburgh, Pa., for respondent.

GANTT, J.

This is a suit by Ida V. Willgues, widow and administratrix of Louis M. Willgues, deceased, under the federal Employers' Liability Act(45 USCA §§ 51-59;U. S. Comp. St. §§ 8657-8665), against the Pennsylvania Railroad Company and the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, for the death of Louis M. Willgues while switching freight cars in the Scully Yards, near Pittsburgh, Pa.The case was dismissed as to the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, and a verdict was returned against the Pennsylvania Railroad Company for $20,000, which company appealed.

Eight grounds of negligence are alleged in, the petition, but only two grounds were submitted to the jury, as follows: First, that a switchman was at fault in not throwing a switch and diverting the car on which Willgues was riding to a clear track, and in not giving a warning signal to Willgues that standing cars were ahead on the track; second, that appellant was negligent because it did not properly instruct Willgues how to control cars moving down the hump and into the yards for classification.

The answer is: (a) General denial: (b) assumption of risk; (c) contributory negligence; (d) and that, before respondent was appointed administratrix of her husband's estate in the probate court of Jackson county, Mo., the orphans' court of Allegheny county, Pa., appointed Ellen Willgues, of Ohio, the mother of Willgues, administratrix of his estate; that said court found the jurisdictional facts necessary to authorize it to make the appointment and to take charge of the estate; that this cause of action was thereby placed under the control of Ellen Willgues, administratrix; that said administration was still in force and open; that the respondent could not maintain this action, and that the proceedings in Pennsylvania were entitled to full faith and credit; that a settlement had been made by the Pennsylvania administratrix with appellant for the sum of $500, and a receipt and full acquittance taken, releasing appellant from liability; that said settlement remains in full force and effect, and is a complete bar to respondent's cause of action against appellant; and that the appointment of respondent as administratrix is fraudulent and void.

The reply was a general denial and a charge that the release was procured without the knowledge or consent of respondent, and that it was the result of fraud practiced upon said orphans' court is without consideration, and null and void.

I.Appellant contends the court should have given an instruction in the nature of a general demurrer, at the close of all the evidence.It is also contended the court erred in giving instructions 1 and 2 at the instance of respondent.It is not claimed the petition does not state a cause of action, and it is not claimed the instructions do not correctly declare the law.The instructions follow the charges of negligence in the petition.It is claimed there is no evidence to sustain these charges.Therefore these assignments of error will be considered as one assignment, for they rest on the contention of appellant that the evidence does not make a case for the respondent.Appellant tendered no instructions to be read to the jury, but argued the case on the instructions given at the instance of respondent.There was no testimony' in the case with reference to the alleged negligence, except that of the employees of appellant, who were called as witnesses by the respondent.

On demurrer the facts are admitted to De as follows: Willgues was given employment by appellant, at Pittsburgh, Pa., as a freight brakeman, on the 27th of July, 1920.After making four or five runs as a brakeman, he was transferred to the Scully yards, in Pittsburgh, to work as a hump rider.The hump is elevated ground running in an easterly and westerly direction through Scully yards.Trains of appellant arriving at Pittsburgh come into the yards south of the hump for classification into outgoing trains made up in the classification yards north of the hump.The manner of operation is as follows: A string of cars is pushed by a switch engine up the south side of the hump to the top of the hump.A conductor is in charge at the peak of the hump.When the cars reach the top, riders (about 14 in number) take their turn in riding cars down the north side.. into the classification yards.Scales are located at the top, and the cars are weighed as they pass slowly over the scales.A rider boards the car and locates himself at the brake before the car reaches the scales.When the car reaches the peak, it is uncoupled by the conductor, and it rolls by gravity across the scales at about two miles per hour, and down the north slope into the classification yards.The speed of the car is controlled solely by the hand brake.Cars run down the north side on a single track, known as the "lead track," for a distance of about 400 feet to the junction switch.At that point the lead track divides into two tracks, known as the east and west ladder tracks.Classification tracks branch off from these tracks as they continue north from the junction switch.The first classification track branching to the left from the west ladder track is 40, the switch point of which is about 140 feet north of the junction switch point.The second classification track leading to the left from the west ladder track is 42, the switch point of which is about 210 feet north of the junction switch point.Then come 44, 46, and so on as the west ladder track continues north.The first classification track branching to the right from the east ladder track is 68, the switch point of which is 95 feet north of the junction switch point.These switches are operated by hand, and controlled by two switchmen.Switchman Northy controls the junction switch, and switches 40 and 68.His shanty is located even with and a few feet east of the junction switch.Switchman Klopman controls switches 42, 44, and other switches leading off the ladder track to the north.His shanty is located 28 feet northwest of switch stand 42.Each switch stand is equipped with a target presenting a yellow light when the classification switch is open and a white light when the switch is closed and set for the ladder track.Three switch lists, made in triplicate originals, which showed by name and number the classification track to which each car was destined, were used on Scully hump.Klopman, Northy, and Colby, the conductor on top of the hump, each had a list.On the morning of the 3d of August, 1920, Willgues reported for duty to Conductor Golby, who had charge of the hump riders at Scully hump.He told Colby he had no experience as a hump rider, and that he had only a few days' experience in railroading.Golby told him not to get excited in doing the work, and that he would put an experienced man on the car with him until he knew how to ride the hump.This was the only instruction Colby remembered giving Willgues.He turned him over to Thompson for instructions.Thompson made two or three trips down the hump with Willgues.On these trips Willgues sat on the edge of the car while Thompson handled the brake wheel.The only instructions given by Thompson were to show how to stand on the footboard, how to handle the brake club, and warned him not to let the car get beyond his control.Conductor Colby testified he told Riley, Horn, and he thought, one or two others to ride cars with Willgues.These men did not testify, and it is not known if they rode cars with Willgues.Shortly after noon on the 3d of August, 1920, Willgues rode his first car down the hump alone.He did not have full control of the car, for it bumped into some standing cars, and knocked coal from a car.He made his second trip about 12:30 p. m. on a large hopper car loaded with coal.The brake and platform were on the front end of the car.Thompson was riding a large hopper car ahead of Willgues, and the brake and platform were on the rear end of the car, causing Willgues and Thompson to face each other as the cars went down into the yards.Willgues' car was cut off by Golby, and started down about 40 feet behind Thompson's car.Although Golby generally informed the rider of the track destination of the car he was riding, he did not give Willgues this information.Thompson's car blocked Willgues' view of the switch light until Thompson's car was diverted at the junction switch to the east ladder track.Willgues' car was diverted at the junction switch to the west ladder track, and there was a car ahead of Thompson's on the west ladder track for classification track 40.This car blocked Willgues' view of the switch light at switch stand 42, which was the next switch, until it cleared track 40.In other words, the junction switch was first set by switchman Northy for the west ladder track until the car destined for track 40 cleared the switch.He then threw it for the east ladder track for Thompson's car.When Thompson's car cleared the switch, it was again thrown allowing Willgues' car, instead of continuing to follow Thompson, to run down the west ladder track following the car destined for track 40.When the car ahead of Willgues on the west ladder track cleared 40, Northy threw switch 40, and Willgues could then see, for the first...