OPINION
GRAVES,
J.
Action
for the alleged negligent killing of Frank Yoakum, by his
widow, as the executrix of his estate. The action is under
the federal Employers' Liability Act (U. S. Comp. St.
§§ 8657-8665), and from a judgment of $ 7,500 the
defendants appealed to the Springfield Court of Appeals,
wherein two of the judges thought the judgment nisi should be
reversed for errors in instructions, and the cause remanded.
One of the judges thought the judgment should be simply
reversed, and asked that the cause be certified to this
court, and hence our jurisdiction. We are able to gather much
light from the three several opinions by our learned Brothers
of that court. The serious question is whether or not the
plaintiff made a case against defendants, who are receivers,
and were operating the St. Louis & San Francisco Railroad
Company.
Deceased
was a car repairer, whose special duties were to repair the
air appliances upon cars, and worked under a foreman by name
of Olson. The work assigned to him required special
knowledge, and there were but three such workmen in the very
extensive yards at Monett, Mo., where this accident occurred.
Monett
is the terminal for three divisions of this railroad, and is
a point where trains coming in are broken up, and new trains
made up for the further transit of the freight. The
switchyards at Monett were 1 1/2 miles to 2 miles long (east
and west) and one-fourth mile wide (north and south), through
which, among many other tracks, ran a track known as the belt
or lead track. From a plat in the record it appears that
there were two repair tracks leading off from this lead or
belt track, one to the north, known as the "new repair
track," and one to the south known as the "old
repair track." The new one was to the west of the old
one some distance. In railroad parlance, these were known as
the "rip" tracks, being a short term for
"repair." These tracks were used primarily for the
purpose of holding bad-order cars, which were placed thereon
for repairs. On the new "rip" track were placed
cars which were to be used in fast freight service, and on
the old "rip" track other cars which needed repair.
The old "rip" track was at times used for the
storage of cars other than bad-order cars, or cars for
repair, and especially was this true upon Sundays, when the
repair force of the yard was reduced to a minimum. The cars
placed in for repair on the new "rip" track, being
cars for fast freight trains, required immediate attention.
From one of the opinions of the Court of Appeals, we take the
following additional facts:
"In a general way, the repairs needed on a car were
noted by the inspectors, and a card designating the character
of repairs needed placed on the car; then the foreman in
charge of the repair work would give out the specifications
to the workmen for their guidance in making the repairs; but,
should anything in connection with the air brakes need
repairing, no specifications were given, but the men who made
those repairs were men possessed of some special skill, and
determined for themselves what was needed. The supplies
necessary for the use of all repair men, including, the air
men, were in charge of a storekeeper, whose duty it was to
keep the supplies replenished as necessity should require.
Often, however, proper supplies were not on hand, and for a
long time prior to this accident it had been the practice, in
repairing a bad-order car on the new rip track, when supplies
were needed which were not on hand, to go to a bad-order car
on the old rip track, and remove therefrom the necessary
material, and take it back to, and use it on, the car being
repaired on the new rip track. This practice obtained by
direction of the various foremen, and the foreman in charge
of deceased had given the same directions, and knew that the
men under him might at any time be required to go from the
new rip track to the old rip track for repair material.
"For the protection of the men while at work under or
between the cars on these repair tracks, a lock for the
switch at the ends of these tracks was provided, and the key
thereto placed in the hands of the foreman, Mr. Olson, who
had immediate charge of these tracks and the work to be done
on cars thereon; and it was his duty, when men were engaged
at work on cars on either of these tracks, to lock the switch
at the ends thereof and place in position a blue flag to
notify switch crews that those tracks were closed, and thus
prevent cars being shoved in on those tracks while the men
were at work on cars standing thereon. Should a switch crew
desire to place cars on those tracks when the switches were
locked, it was their duty to call the foreman and acquaint
him with their desires, and he would then warn the men to get
out, and after that open the switch and let the cars in.
Should a switch crew find the switch unlocked and the flag
down, they would understand thereby that the track was open
and ready for their use. There was in force at the time what
is known as the 'blue flag rule,' which provided that
employees were not to work under or about a car unless the
blue flag was up."
Deceased
was given a copy of the blue flag rule, and receipted for the
same upon a copy thereof, which rule and his receipt read:
"A blue flag by day and blue light by night placed on a
track or at the end of a car, engine or train, denotes that
workmen are at work under or about the car, engine, or train,
and employee must not work at such places unless such blue
signal is so placed. A car, engine or train thus protected
must not be coupled to or moved until the blue signal is
removed by the person who placed it.
"When a car, engine, or train is protected by a blue
signal, other cars must not be so placed in front of it as to
obscure the blue signal without first notifying the workmen,
that they may protect themselves.
"I acknowledge receipt of a copy of above rule. I have
read the rule and understand it.
"J. F. Yoakum."
Our
learned Brother of the Court of Appeals then further states
the facts thus:
"The deceased was an air man; that is, his duties
required him to make repairs in connection with the air
brakes. This injury occurred on Sunday, when only urgent
repairs were made and the men at work were fewer in number
than on week days, and the deceased was the only air man at
work that day. There were eight or ten other repair men at
work, and all were repairing cars standing on the new rip
track. There were four bad-order cars standing on the old rip
track, but no one was working on them. The old rip track was
sometimes used for general purposes when the yards were
crowded, and it was not necessary for the repair men to use
it, and this was more likely to be the case on Sunday than on
other days. On this Sunday, this track remained open all day
and in the evening deceased, when about to complete his
day's work, needed an angle cock which was not in the
store, and went to a bad-order car standing on the old rip
track to secure one, and while engaged in removing the same a
switch crew backed some cars in on that track, and he was
crushed between two cars and killed."
When it
is said that the track remained open on the Sunday of the
accident, it is meant that the switch was not locked, nor was
the blue flag up. Their absence indicated an open track, and
all employes would so understand it. The negligence charged
in the petition is finally thus summarized:
"Plaintiff charges that the said Frank Yoakum came to
his death as the result of the negligence, unskillfulness,
and incompetency of the officers, agents, and servants of the
defendants, and those in charge of the operation of said
switch engine, engaged in interstate commerce as aforesaid,
in the following particulars: In shoving cars back onto old
'rip track' without giving sufficient warning or
reasonable notice to said Yoakum of such intentions to put
cars on said track. In failing to warn said Yoakum that said
switch engine or cars was liable to come in and couple onto
the cars standing on said
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