Wolfe v. Payne

Decision Date01 June 1922
Docket NumberNo. 22771.,22771.
Citation294 Mo. 170,241 S.W. 915
PartiesWOLFE v. PAYNE, Director General of Railroads.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Action by Lee A. Wolfe against John Barton Payne, Director General of Railroads, etc. From judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Sidney Thorne Abel and Charles F. Noell, both of St. Louis, for respondent.

SMALL, C. I.

Appeal from the circuit court of the city of St. Louis. Personal injury suit.

Plaintiff's evidence tended to show that on March 14, 1918, he was a conductor on the Chicago & Eastern Illinois Railroad, then in control and being operated by the government under the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115¾a-3115¾p), and lost his left arm by being run over by a car in the freight train of which he was conductor. That while the train was at Bourbon Station, Ill., moving slowly, he was standing on the west side of a car with his feet in the sill step or stirrup close to the north end of the car and his right hand holding onto the handhold or grabiron. The said sill step was fastened to the bottom of the car within a foot, or thereabouts, of the north end, and directly over it, about 3 or 4 feet, was the handhold or grabiron, a round iron bar about 20 inches long, bent at the ends which were bolted into the wooden side of the car. But the wood had rotted or been worn away so that the bolts had a play or movement of about an inch or more, which made the grabiron loose and defective and permitted it to move to that extent. While thus holding onto the grabiron which with his right hand and standing in this step, plaintiff signaled the fireman with his left hand to stop the train; but, instead of stopping, the train moved forward with a violent jerk at accelerated speed, and, by reason of the movement of the loose grabiron to which plaintiff was holding, he was caused to fall to the ground beside the car and one of the wheels ran over his left arm and injured it so that it had to be amputated at the shoulder joint. Plaintiff's, evidence further tended to show that it was not unusual for conductors or brakemen to stand in the step and hold onto the grabiron to signal orders as to the movement of the train.

The defendant's evidence tended to show a contrary state of facts, and that plaintiff was injured in attempting to exchange papers with the station agent while hanging and leaning out from the ladder on the side of the car near its south end while the same was in motion in passing said station, and slipped and fell under the car in so doing. The car was an interstate car and was being used in interstate commerce. As to this there was no dispute. Nor was there any dispute as to the worn condition of the wood around the handhold and the loose condition of the bolts therein which permitted the grabiron or handhold to have a movement or play of about an inch.

The petition, which is long, in substance alleged as to the cause of the accident: First, that the grabiron was defective and insufficient and not securely and safely attached to the side of the said car; that the grabiron, the bolt, and other apparatus used to attach the grabiron to the car, and the car at the point of attachment, were then and there old, worn, loose, unstable, wobbly and rickety, and dangerous and unsafe to work about, and had been in that condition for some time before the accident, as defendant knew, or might have known by due care, in time to remedy same prior to plaintiff's injury, but negligently failed to do so or warn plaintiff with reference to same, and that, by reason of defendant's negligence and "the defects and insufficiencies" which were due to defendant's negligence, plaintiff was injured.

Second, that while plaintiff was so riding upon the side of the car and holding to said grabiron and the train was moving slowly, plaintiff gave the usual signal to the persons in charge of the engine to stop, but they negligently failed to look out and discover said signal, or, if they saw it, they negligently failed to obey it, but negligently started said train forward without warning plaintiff, knowing, or by the exercise of due care might have known, that plaintiff was in a place of danger of being thrown off by such action, and thereby precipitated the plaintiff to the ground, whereby he was injured as before stated.

The third specification is in substance the same as the first, except it also alleged the car was being used in interstate commerce, and the grabiron and attachments were not securely fastened as required by the Safety Appliance Act of the United States (U. S. Comp. St. § 8605 et seq.) and the orders of the Interstate Commerce Commission, but old, worn, loose, dangerous and unsafe, and in a condition in violation of the said Safety Appliance Act, etc., whereby plaintiff was thrown off and injured.

The fourth specification is substantially the same as the second," with the additional allegation that the train was started forward with a violent and extraordinary jerk at accelerated speed, and, by reason of the movement of the loose grabiron to which plaintiff was holding, he was caused to fall to the ground beside the car, and one of the wheels ran over his left arm and injured it so that it had to be amputated a few hours afterwards at the shoulder joint.

The petition then alleges that—

By reason of all "the aforesaid mentioned matters, singly and collectively, he was thrown from the side of the car and beneath the wheels of one of the cars in said train, and one of said wheels ran over plaintiff's arm," etc.

"Wherefore plaintiff states that he has been damaged in the sum of $65,000, for which, with costs, he prays judgment."

The answer put the allegations of the petition in issue, also pleaded contributory negligence and assumption of risk. Reply was a general denial.

The court refused a demurrer to evidence asked by defendant, gave nine instructions for defendant, four on its own motion, and one for the plaintiff. The plaintiff's instruction was as follows:

"The court instructs the jury that if you find and believe from the evidence that the plaintiff was injured on or about the 14th day of March, 1918, in Bourbon, Ill., and if you further find and believe from the evidence that at the time he was injured he was the conductor of freight train No. 160, and if you further find and believe from the evidence that at such time freight train No. 160 was moving northwardly on the north-bound main track of the Chicago & Eastern Illinois Railroad Company, and if you further find and believe from the evidence that there was a car initialed B. & L. E. and numbered 80993 in train No. 160 at the time which contained corn shipped from Arthur, Ill., and which was at the time en route to Terre Haute, Ind. (if you so find), and if you further find and believe from the evidence that the plaintiff, Lee A. Wolfe, was at the time riding on the side of the said car initialed B. & L. E. and numbered 80993, holding to a grabiron on the west side near the north end of the aforesaid car in the aforementioned train, if you find that it was in said train, and if you further find and believe from the evidence that at the time the train was moving at a slow rate of speed, and if you further find and believe from the evidence that the plaintiff, Lee A. Wolfe, gave a stop signal in the performance of his duties as the conductor upon the train, if you so find, to those operating and in charge of the movement of the said engine, and if you further find and believe from the evidence that the fireman was in the cab of the engine on the west side of the train, and if you further find and believe from the evidence that the fireman was looking back toward the plaintiff, and if you further find and believe from the evidence that it was the duty of the fireman to exercise ordinary care to discover, transmit, and pass a signal to the engineer, if a signal was given by the plaintiff, and if you further find and believe from the evidence that it was then the duty of the engineer to act upon such signal, if such signal was repeated to him by the fireman, and if you further find and believe from the evidence that the fireman knew that the plaintiff was on the side of the said train and in a position where he would be in danger of being thrown off the train by the sudden increase of the speed of the said train without warning to the plaintiff that the speed was to be increased, and if you further find and believe from the evidence that in the exercise of ordinary care it was the duty of the fireman to exercise ordinary care to look out for signals given by the plaintiff, and if you further find and believe from the evidence that just prior to the time plaintiff was injured, if you find that he was injured, plaintiff gave a stop signal, and if you find and believe from the evidence that the fireman either saw the stop signal given by the plaintiff, or that if he did not see it that had he exercised ordinary care he could have seen the stop signal, if you find that there was a stop signal given by the plaintiff at the time, and if you further find and believe from the evidence that while plaintiff was giving the stop signal the train slackened up to a slower speed, and if you further find and believe from the evidence that the plaintiff continued to give the stop signal, and if you further find and believe from the evidence that while the said stop signal was being given by the plaintiff those in the engine and in charge thereof gave the engine steam and caused the train to start suddenly forward at an increased rate of speed, if you so find, and if you further find and believe from the evidence that in the exercise of ordinary care those in charge of and operating the engine should not have caused...

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