Young v. Lusk

• Decision Date: 18 July 1916
• Parties: ARTHUR L. YOUNG v. JAMES K. LUSK et al., Receivers, Appellants
• Court: Missouri Supreme Court

187 S.W. 849

268 Mo. 625

ARTHUR L. YOUNG v. JAMES K. LUSK et al., Receivers, Appellants

Supreme Court of Missouri, First Division

July 18, 1916

Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.

Affirmed (conditionally).

W. F Evans, E. T. Miller and A. E. Haid for appellants.

(1) Plaintiff made no case. (a) Plaintiff and defendants were not at the time of the injury both engaged in interstate commerce. Thompson v. Railroad, 262 Mo. 468; Railroad v. Behrens, 233 U.S. 473; Federal Emp Liability Act, 35 U. S. Stat. at L., p. 65, as amended by 36 U. S. Statutes L. 291. (b) The record fails to show any negligence on the part of defendants. The negligence charged is not a violation of any Federal statute enacted for the safety of employees. The negligence charged is failing to warn plaintiff of the approach of cars when defendants should have known of plaintiff's position of peril. Defendants were under no obligation to warn plaintiff. Degonia v. Railroad, 224 Mo. 564; Nivert v. Railroad, 232 Mo. 626; Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Hitz v. Railroad, 152 Mo.App. 687; Ginnochio v. Railroad, 155 Mo.App. 163; Aerkfetz v. Humphreys, 145 U.S. 418; Connelley v. Railroad, 201 F. 54; Boldt v. Railroad, 218 F. 367. (c) Plaintiff assumed the risk of the injuries sustained by him. Nivert v. Railroad, 232 Mo. 626; Railroad v. Horton, 233 U.S. 492; Connelley v. Railroad, 201 F. 54; Boldt v. Railroad, 218 F. 367. (2) Plaintiff's instruction number 1 is erroneous. (a) There was no evidence that the cars which struck the three stationary cars were moved with rapidity against those cars. (b) There was no evidence that the cars on Track Four, or that the train on the lead track, were at the time plaintiff was injured, engaged in interstate commerce. Thompson v. Railroad, 262 Mo. 468; Railroad v. Behrens, 233 U.S. 473. (c) The instruction erroneously declared the law to be that the switching crew should have known of plaintiff's perilous position and warned him of the approach of the cars. Degonia v. Railroad, 224 Mo. 564; Nivert v. Railroad, 232 Mo. 626; Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Aerkfetz v. Humphreys, 145 U.S. 418; Boldt v. Railroad, 218 F. 367. (3) The instruction given of the court's own motion was erroneous. The instruction should have been given as requested by defendants in their refused instruction. (a) The blue flag rule, which was the basis of the instruction, was a just requirement, and plaintiff should have complied therewith. Mason v. Railroad, 161 Mo.App. 610; Railroad v. Pool, 160 U.S. 438. (b) The court should not have submitted to the jury the question of the waiver of the rule. If the question of waiver should have been submitted the court should have instructed the jury what facts would constitute a waiver. State v. Hardelein, 169 Mo. 579; McNamara v. Transit Co., 182 Mo. 676; Commission Co. v. Hunter, 91 Mo.App. 333; Nulton v. Croskey, 111 Mo.App. 18; Joyce v. Transit Co., 111 Mo.App. 565; Ayers v. Railroad, 124 Mo.App. 422; State ex rel. v. Allen, 124 Mo.App. 465. (4) The verdict is grossly excessive, and bears no relation to the injuries sustained. The jury disregarded the contributory negligence of the plaintiff.

Joseph A. Wright for respondent.

(1) The plaintiff is entitled to the benefit of the Federal Employers' Liability Act of April 22, 1908. Railroad v. Seale, 229 U.S. 156; Pedersen v. Railroad, 229 U.S. 146; Railroad v. Carr, 238 U.S. 260; Railroad v. Zachary, 232 U.S. 248; Walsh v. Railroad, 223 U.S. 6; Seaboard Air Line v. Koenecke, 239 U.S. 352; Railroad v. Glinn, 219 F. 148; Lombardo v. Railroad, 223 F. 427; Railroad v. Russell, 209 F. 795; Law v. Railroad, 208 F. 869. (2) The negligence of defendants is established by the evidence and the case properly submitted to the jury. Seaboard Air Line v. Koenecke, 239 U.S. 352; Kame v. Railroad, 254 Mo. 196; Koerner v. Car Co., 209 Mo. 141; Baker v. Railroad, 147 Mo. 158; Colasurdo v. Railroad, 180 F. 832; Railroad v. Johnson, 161 Ky. 824; Railroad v. Hennessey, 177 Ind. 64; Dowd v. Railroad, 170 N.Y. 459; Doing v. Railroad, 151 N.W. 579; Anable v. Railroad, 138 A.D. 380; Brady v. Railroad, 184 Mass. 225; Canon v. Railroad, 101 Iowa 613; Merrill v. Railroad, 29 Utah 264. (3) The issue of assumption of risk, if defendants were entitled under the evidence to have same submitted to the jury, has been passed on by the jury under an instruction most favorable to defendants. Fish v. Railroad, 263 Mo. 106; Seaboard Air Line v. Horton, 239 U.S. 180; Railroad v. Wright, 235 U.S. 376; Seaboard Air Line v. Horton, 233 U.S. 492; Railroad v. Hall, 232 U.S. 94; McGovern v. Railroad, 235 U.S. 389. (4) The issue joined upon the blue flag rule was without error submitted to the jury. (a) The blue flag rule may be waived. 3 Labatt on Master & Servant, par. 1138; Devoe v. New York Central, 174 N.Y. 1; Anable v. New York Central, 138 A.D. 380; Brady v. Railroad, 184 Mass. 225; Merrill v. Oregon Short Line, 29 Utah 264. (b) The instruction on the blue flag rule was proper, and defendants are not in position to complain thereof. Norris v. Railroad, 239 Mo. 695; King v. St. Louis, 250 Mo. 501; State ex rel. v. Reynolds, 257 Mo. 19; Sang v. St. Louis, 262 Mo. 454; Stotler v. Railroad, 200 Mo. 107; Bank v. Lee, 182 Mo.App. 185; Crow v. Lutz, 175 Mo.App. 427; McMahon v. Macabees, 151 Mo. 522; Griffith v. Royal Arcanum, 182 Mo.App. 644; Estel v. Railroad, 56 Mo. 282; Ins. Co. v. Hauck, 83 Mo. 21; Jordan v. Moulding Co., 77 Mo.App. 572; Hopkins v. Modern Woodmen, 94 Mo.App. 402.

OPINION

GRAVES, P. J.

Action for personal injuries brought in the State circuit court in St. Louis, under the Federal Employers' Liability Act of April 22, 1908. The negligence charged is best stated in the language of the petition, thus:

"That at about 4:45 p. m. on said 27th day of August, 1914, plaintiff, in the discharge of his duties as such employee, was trying to turn the angle-cock of the airbrake equipment of a freight car and at the northeast of a string of three freight cars on one of the tracks in said Frisco freight yards, and whilst so engaged a switching crew of defendants consisting of an engineer, fireman, foreman and two brakemen, while acting within the scope of their duties, and while so employed by defendants in said yards, and while both said switching crew and plaintiff were actually engaged as such employees in carrying on of commerce for defendants as such receivers between the State of Missouri and the other States of the United States hereinbefore named, in violation of an Act of Congress approved April 22, 1908, entitled 'An act relating to the liability of common carriers by railroad to their employees in certain cases,' carelessly and negligently made a (flying) switch with about three or four other freight cars coupled together, causing said cars to be moved with rapidity after the switch engine had been uncoupled therefrom along and down the track where the said car was standing upon which plaintiff was working, as aforesaid, and carelessly and negligently caused said string of cars thus being moved to strike the string of cars standing on said track at the southwest end thereof, thereby causing plaintiff to be violently struck by the end of said car upon which he was working and thrown on the tracks, and his left arm run over by one of the wheels and trucks, and so multilated as to necessitate its immediate amputation and bruising and contusing his back and shoulders.

"That said cars were thus switched and run by said switching crew upon said string of cars where plaintiff was working without any warning to plaintiff, and when they knew, or by the exercise of ordinary care might have known, that plaintiff was at said northeast end of said car and string of cars standing on said track and in a position of peril and danger while discharging his said duties as an employee of defendants by reason of switching and running of said cars."

The answer, after making certain formal admissions, pleads three defenses: (1) contributory negligence; (2) assumption of risk, and (3) violation of a designated rule of the company.

Upon a trial before a jury the plaintiff had a verdict for $ 12,000 upon which judgment was duly entered, and from such judgment, defendants, as receivers of what is called the "Frisco Railroad," have appealed.

The assignment of errors runs the usual gamut in cases of this character, and the evidence, so far as material, can best be stated in connection with the points for discussion.

I. Plaintiff, aged 47 years at date of accident, as a railroad man of many years experience. At the time of accident he was engaged by defendants as air inspector in the yards of the St. Louis & San Francisco Railroad Co. at or near Chouteau Ave., St. Louis, Mo. His duties were to couple up the air appliances as cars were being put in a train, and after the train was made up and the engine attached, to test the air on the completed train. When not thus engaged he did some minor repair work. He had worked in this capacity some months prior to his unfortunate injury.

Defendant urges that plaintiff's case failed for several reasons, and that their demurrer to the testimony should have been sustained. Of these in their order.

II. First it is urged that plaintiff failed to show that he was so engaged at the time of injury as to bring him within the Federal law, supra. This contention cannot be sustained. The petition charged that the defendants were operating a railroad between the State of Missouri and other named states, and the answer admitted this portion of the petition. The defendants were therefore admittedly interstate carriers.

The yards in which plaintiff was at work was what is known as a...