Yost v. Union Pac. R. Co.

• Decision Date: 20 June 1912
• Citation: 149 S.W. 577
• Parties: YOST v. UNION PAC. R. CO.
• Court: Missouri Supreme Court

149 S.W. 577

YOST v. UNION PAC. R. CO.

Supreme Court of Missouri, Division No. 2.

June 20, 1912.

Rehearing Denied July 5, 1912.

1. MASTER AND SERVANT (§ 860) — ACTION FOR INJURIES—LAW GOVERNING.

Where a railroad employé's injuries occurred in Colorado, the law of that state governs in the action.

2. MASTER AND SERVANT (§ 879—EMPLOYER'S LIABILITY ACT—COMMON-LAW ACTION.

The Employer's Liability Act of Colorado (Laws 1893, p. 129), authorizing recovery by an injured employé against his employer, does not abolish the employé's right of action at common law for his employer's negligence.

3. MASTER AND SERVANT (§ 253½)—INJURIES TO SERVANT—LIMITATIONS.

Where an employé's action for injuries received in Colorado in 1902 was one at common law, permissible under the common law in force in Colorado, and not an action under the Employer's Liability Act of Colorado (Laws 1893, p. 129), it was not barred by a provision of such act that an employé's action for injuries must be commenced within two years.

4. STATUTES (§ 226)—CONSTRUCTION—STATUTES ADOPTED FROM OTHER STATES.

The Employer's Liability Act of Colorado (Laws 1893, p. 129) was adopted from Massachusetts with the construction placed upon it in that state.

5. APPEAL AND ERROR (§ 1040)—HARMLESS ERROR—RULING ON DEMURRER.

Where, in an employé's action for injuries received in Colorado, the defendant pleaded a Colorado statute of limitations and the proof at the trial showed such statute to be inapplicable, he could not complain that a demurrer was sustained to such plea, though the inapplicability of the statute had not been shown when the demurrer was ruled on.

3. APPEAL AND ERROR (§ 274)—EXCEPTIONS —SUFFICIENCY.

Where the trial court by one order overruled defendant's motion for a new trial and In arrest of judgment, a single exception thereto was sufficient to require a review on appeal.

7. MASTER AND SERVANT (§ 2889—INJURY TO SERVANT—ASSUMPTION OF RISK—QUESTION FOR JURY.

Where, in a brakeman's action for injury from catching his foot beneath the spread bar of a switch, the evidence was conflicting on whether the construction of the switch, as to the space left beneath the spread bar, conformed to that adopted and uniformly used on the railroad, and as to what construction was customary on the road, and it did not appear that the plaintiff had knowledge of the condition at this switch prior to his injury, the question whether he assumed the risk was for the jury.

8. MASTER AND SERVANT (§ 2895)—INJURY TO SERVANT — KNOWLEDGE OF DEFECT — QUESTION FOR JURY.

Where, in such case, it appeared that the defect was not open and obvious, and the plaintiff denied any previous knowledge of its existence, the question of whether knowledge of the existence of the dangerous space beneath the spread bar was to be imputed to him from the exercise of ordinary care was for the jury.

9. MASTER AND SERVANT (§ 2860)—INJURY TO SERVANT—NEGLIGENCE—QUESTION FOR JURY.

Where, in such case, the evidence was conflicting, both on the alleged custom in switch construction and on conformity of the switch with such custom, the question whether maintenance of the switch was negligence was for the jury.

10. MASTER AND SERVANT (§ 1120)—INJURY TO SERVANT—NEGLIGENT CONSTRUCTION.

The fact that a switch conforms to the standard requirements in all particulars except one does not exonerate the railroad from liability for an injury from the single departure.

11. MASTER AND SERVANT (§ 2860)—INJURY TO SERVANT — ABANDONMENT OF RULE— QUESTION FOR JURY.

Where, in a brakeman's action for injuries from catching his foot beneath a spread bar of a switch, while he was disconnecting the air hose between moving cars, there was evidence that defendant's employés customarily, in violation of a rule of the company of which plaintiff had knowledge, went between moving cars to disconnect air hose, and that plaintiff had been instructed to do the same by defendant's employé, whose function was to hire and discharge employés, the question of defendant's abandonment of its rule was for the jury.

12. MASTER AND SERVANT (§§ 286, 2890)—INJURIES TO SERVANT—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Whether or not, under all the circumstances, the negligence of the master or of the servant is the proximate cause is for the jury, where there is any doubt.

13. TRIAL (§ 2520) — INSTRUCTIONS —EVIDENCE.

Where, in a brakeman's action for injuries from catching his foot beneath the spread bar of a switch while disconnecting the air hose between moving cars, it appeared that plaintiff had been specially instructed to make the disconnection in this manner, and that the rules given him required him to obey "the rules and special instructions," it was not error to instruct that, if his injury was received

while complying with the special instructions given him, then defendant's rule to the contrary was no defense.

14. MASTER AND SERVANT (§ 270—INJURY TO SERVANT — ADMISSION OF EVIDENCE— SAFETY APPLIANCE ACT.

In a brakeman's action for injuries from going between moving cars to disconnect the air hose, the admission of evidence of defendant's abandonment of a rule prohibiting going between moving cars was not violative of the spirit of the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), which requires interstate carriers to equip their cars with a device for coupling and uncoupling, where it appeared that defendant had not installed any device for disconnecting the air hose.

15. TRIAL (§ 317)—JURY—MOTION TO DISCHARGE.

A motion to discharge the jury, because of occurrences in their presence, was too late, when not made for several days after the occurrences.

16. NEW TRIAL (§ 29) — GROUNDS — ARGUMENT OF COUNSEL.

In an employaé's action for injuries, the trial court did not abuse its discretion in denying a new trial, sought because plaintiff's counsel, in closing, said, in response to argument: "Do you think the poor boy has unlimited means to run all over this railroad like that railroad company, with their passes and their money?"

17. DAMAGES (§ 132)—EXCESSIVE RECOVERY.

A recovery of $25,000 for the loss of a right leg and injuries, some permanent and some otherwise, where plaintiff was a young man, 27 years of age, and in "good health, was excessive, and reduced to $15,000.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Charles W. Yost against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter a remittitur; otherwise to be reversed and remanded.

N. H. Loomis, Douglass & Watson, and R. W. Blair, for appellant. Rosenberger & Reed and J. L. Lorie, for respondent.

BLAIR, C.

This Is an action to recover damages for personal injuries sustained by respondent while employed as a brakeman. From a judgment for $25,000, this appeal was taken. The petition alleged that respondent's injury resulted from the defective, unsafe, and dangerous condition of one of appellant's switches at Julesberg, Colo., and the negligent omission of appellant to warn respondent thereof. The answer consisted of (1) a general denial, and then pleaded (2) contributory negligence, under the laws of Colorado, (3) the violation of a rule of appellant, (4) assumption of risk under the laws of Nebraska, (5) assumption of risk under the laws of Colorado, (6) the fouryear statute of limitation of Nebraska, and (7) a two-year statute of limitation of Colorado. A demurrer to the sixth and seventh pleas was sustained. To the remainder of the answer, respondent filed a reply, consisting of a general denial, allegations that at the time of the injury the common law was in force in both Colorado and Nebraska, and that the rule pleaded had been waived and abandoned.

The respondent was injured June 3, 1902, while disconnecting the air hose between two moving cars in the yards at Julesberg, Colo. Having made the disconnection, he started to step out from between the cars, when his right foot went into the opening between a cross-tie and one of the spread bars of a split switch, through which the cars were passing, his foot became wedged or fastened, he was thrown to the ground, and the engine and two cars passed over him, inflicting severe injuries.

In January, 1902, respondent, then a grocery clerk, 27 years old, and without experience in railroading, applied to H. Cox, appellant's chief train dispatcher at North Platte, Neb., for employment as a brakeman. Cox, who was empowered to hire and discharge employés, as well as to perform other duties, gave respondent a time card containing, among other things, numerous rules and regulations, told him to "study up on the hand and lantern signals, train signals, fixed signals, and on how to flag trains in case of accident" (but gave no instructions as to the rules relating to the safety of employés), and sent respondent to one of defendant's freight conductors for instructions. In pursuance of this direction, in the latter part of the same month, this conductor, Moses McFarland, took respondent on two trial or instruction trips, and on these instructed him with regard to brakeman's duties, among many other things showing respondent how to disconnect the air hose between two moving cars, performing the operation for respondent's enlightenment, advising him as to the use of the handhold, telling him that in performing this duty he should always "give one hand to the company and one to himself," and also informing him that the work was done by the method thus exemplified ; that it was the practical way of doing the work. Respondent made one trip as a brakeman in February, three in March, about twenty in April, two in May, and was injured on his first trip in June. Five of these trips were made on local freight trains, five on passenger trains, and the rest on through freights. There was little switching to be done, except with the local...