Yoakum v. Lusk

• Decision Date: 24 March 1917
• Docket Number: No. 1894.,1894.
• Citation: 193 S.W. 635
• Parties: YOAKUM v. LUSK et al.
• Court: Missouri Court of Appeals

193 S.W. 635

YOAKUM v. LUSK et al.

No. 1894.

Springfield Court of Appeals. Missouri.

March 24, 1917.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by Maggie Yoakum, administratrix of Frank Yoakum, deceased, against James A. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants appeal. Reversed and certified to Supreme Court.

W. F. Evans, of St. Louis, James T. Neville, of Springfield, W. B. Skinner, of Mt. Vernon, and Mann, Todd & Mann, of Springfield, for appellants. D. H. Kemp, of Monett, and I. V. McPherson and J. A. Potter, both of Aurora, for respondent.

COX, P. J.

Suit for damages for the death of Frank Yoakum, who was caught between two cars on the track of defendant March 5, 1916, and crushed to death. Defendants were at the time engaged in interstate commerce, and this action is brought under the federal Employers' Liability Act, charging negligence of defendants. The parties to be benefited in case of recovery are the widow and one minor child. The trial resulted in a verdict for plaintiff for $7,500, and defendants have appealed. The errors assigned relate to giving and refusing instructions.

The first error assigned is the refusal of the trial court to give to the jury a peremptory instruction to find for the defendants. A determination of that question necessitates a review of the testimony most favorable to plaintiff, and if that testimony is deemed sufficient to take the case to the jury on the question of defendants' negligence, this point must be ruled against appellants regardless of the other testimony in the case, but, if not, then their contention must be sustained.

This action being under the federal act, the question of the negligence of deceased is not material in determining whether or not a demurrer to plaintiff's testimony should have been sustained. These questions are so well settled that citation of authorities is unnecessary.

Keeping in mind the foregoing rule the facts may be summarized as follows:

The accident occurred at Monett, Mo., which is a terminal or division point where freight is received from several divisions, and trains are there cut up and rearranged, and cars that are found to need repairs are repaired on the tracks at that point. The switch yard at Monett is 1½ to 2 miles in length east and west and one-fourth mile wide north and south, and has a great many tracks. One of these tracks is known as the lead or belt track and runs east and west. Connected with this and immediately north of it is what is known as the old rip track, and to the south of it is the new rip track.

These rip tracks were used primarily to place bad order cars on while being repaired. The old rip track was sometimes used for general switch purposes at times when the yard was crowded. The practice was to place cars containing freight that was required to be forwarded as soon as possible on the new rip track, and they were repaired first. 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 wth 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 two 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 employés were not to work under or about a car unless the blue flag was up.

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.

The contention of appellants is that there is no substantial evidence tending to show any negligence on their part, and that the evidence shows affirmatively that the sole cause of the death of deceased was his own negligence. They contend that deceased knew or ought to have known when he went between the cars to remove the angle cock that the switch was open, and hence assumed a position of danger at his own risk.

We may concede that deceased was negligent in going between the cars as he did; yet, if appellants were also chargeable with negligence, they cannot in this case, it being brought under the federal law, escape liability in toto, but can only take advantage of his negligence for the purpose of reducing the damages; hence it is unnecessary in this connection to discuss the question of the negligence of deceased.

The propriety of the action of the trial court in refusing the peremptory instruction asked by defendants is to be determined solely by the facts, or want of facts, tending to show appellants' negligence regardless of whether or not deceased was negligent.

The charges of negligence which we deem it pertinent to notice in connection with the point now under consideration are that defendants were negligent in their method of furnishing light repairs and in shoving cars back onto the old rip track without notice, or in not warning the switch crew not to go in on that track at the time they did.

In our view of this case, the question whether or not appellants were chargeable with negligence is to be determined by answering the question whether or not it was the duty of Mr. Olson, the foreman in charge of the rip tracks, to have kept the old rip track locked and protected on the day that Yoakum was killed.

The petition does not in so many words charge that it was the duty of the foreman to have had that track protected at the time Yoakum was killed, but we think the charge that appellants were negligent in their method of furnishing repairs and in not notifying the switch crew not to go in on that track is sufficient under the condition of this record to warrant the submission of that question to the jury, for it was the lack of supplies that made it necessary for Yoakum to go where he did, and if the foreman knew or ought to have known that fact, then it became his duty to warn the switchmen not to go in on that track, and this warning should have been given by putting up the blue flag.

As bearing on the question of the duty of the foreman to have locked the switch and put up the blue flag on the old rip track, we find evidence tending to show that Olson, the foreman, had complete charge of both the old and new rip tracks. He carried the key by which the switches were locked when the men were at work on either track, and attended to locking the switches when necessary to do so for their protection. He had complete control of the switching on these tracks, and cars could not be put in on these tracks without his consent.

On the Sunday that Yoakum was killed there were eight or ten other men at work also, and he and they were all engaged in repairing cars standing on the new rip track, and the switch to that track was locked and the blue flag up. There were a few bad order cars standing on the old rip track, but no one was working at repairing them, and the switch to that...