Young v. Lusk

• Decision Date: 02 June 1916
• Docket Number: No. 19114.,19114.
• Citation: 187 S.W. 849,268 Mo. 625
• Parties: YOUNG v. LUSK et al.
• Court: Missouri Supreme Court

187 S.W. 849

268 Mo. 625

YOUNG v. LUSK et al.

No. 19114.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Motion to Transfer to Court in Banc Overruled July 18, 1916.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by Arthur L. Young against James W. Lusk and others as receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed upon condition.

W. F. Evans, E. T. Miller, and A. E. Haid, all of St. Louis, for appellants. Joseph A. Wright, of St. Louis, for respondent.

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 employé, was trying to turn the angle-cock of the air-brake equipment of a freight car and at the northeast of a string of three freight cars on one of the tracks in said Frisco freightyards, 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 employés 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 employés 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 mutilated 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 employé 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, was a railroad man of many years' experience. At the time of accident he was engaged by defendant as air inspector in the yards of the St. Louis & San Francisco Railroad Company at or near Chouteau avenue, 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 the plaintiff was at work was what is known as a gravity yard. Through it ran a "lead" track, and from this "lead" track there were a number of tracks (some 26 or 27) connected therewith by means of switches. The surface of the ground so sloped that cars could be pushed in on these several tracks, and would move down them without power, or by mere gravity. At the time of the accident, plaintiff was working with cars on track 4, having just left track 5. As to the use of these several tracks, he testified:

"Q. How long is this Chouteau avenue yard, Mr. Young; can you tell us? A. Why, this yard I was working in, the in-bound yard, is something about a quarter or half mile long, hardly a half; something between that. I believe track 4 held the biggest sting of cars, I believe 46 cars. Q. Were you working in-bound or out-bound? A. Working on the out-bound track, but I worked in-bound and out-bound. Trains would come in, and we would make them up there on that other track, and they would go through. Dead freight came there to this other yard. Q. In what track were you working when you were hurt? A. No. 4. Q. What was that used for? A. Dead freight going east that was used for. Q. And in these Frisco tracks or yards were certain tracks assigned for certain railroads and certain places in the make-up of out-bound cars? Or freight? A. Yes, sir. Q. What different tracks were on the out-bound, if you remember? A. Why, 4, 5, 6, 7, 8, 9, 14, 17, 15, and 16; 15 and 16 the stuff was west-bound, stuff went west. Q. The other tracks were east-bound? A. Yes, sir; 10, 11, and 12 were mostly empty cars, went to the house for loading. Q. Track 4, what was it used for, out-bound? A. The cars were all carded `bridge' on there; all went to Illinois, and on different roads after they got to Illinois. Q. What bridge did that go over? A. Eads bridge. Q. Did the Frisco put a label on cars, any distinct label, going over Eads bridge? A. Yes, sir; always had a green card they marked, `Bridge.' Q. What's the east words on the check or tag? A. Just, `Bridge,' then it stated what road after it got across, but the green card was marked, `To Bridge.' Q. Do you know what was the name of the railroad on the side of this car where you were working when you got hurt? A. No, I never noticed where it was going, or what road it was delivered to. It was delivered to the bridge; I didn't notice what bridge. Q. The name on the side of the car? A. Oh, that was Houston & Texas Central. Q. Do you know where that railroad operates? A. In Texas."

Later on he further says:

"Q. Don't they receive cars on tracks 4, 5, and 6, and deliver to industries on this side of the river, I mean? A. Not that I know of. I never seen them billed that way. Everything on 4 was always carded, `Bridge,' unless sometimes they were not using it, and throws a lot of junk on there. * * * Q. Did you look at the label on all three of the cars? A. Yes, all three on there; they were carded, `Bridge.' Q. Where were those labels placed on the cars? A. On the side of the cars, supposed to be placed on the north end of the car; on the west side they are supposed to be. Q. When did you see labels on all three of the cars? A. I saw them when I came up there."

Witness Allen W. Harvey, among other things, said:

"Q. Those yards up there are used for the receiving of freight cars from all over the United States, aren't they? A. Yes, I expect in the course of every few minutes there is a car goes from there to every point in the United States in these yards. Q. Cars go in and out of those yards for many states, don't they? Different states in the Union? A. Yes, I guess they do."

Cars for the bridge crossed the river and went to the state of Illinois. The above was ample evidence upon which to submit, under proper instructions, the question as to whether or not the plaintiff and the railroad were engaged in interstate commerce at the time of the accident. On this question the demurrer was well overruled.

III. The next contention of the defendants is thus stated in the brief:

"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 employés. 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."

This contention, like the tongue of the serpent, is forked. We have (1) no negligence shown as against defendants, (2) that the negligence charged does not fall within the purview of the federal act, and (3) that the negligence charged in the petition is a failure to warn plaintiff of the approach of the cars.

The latter statement can be shortly disposed of by a reading of the petition. The petition charges two acts of negligence, and the defendants are in error when they say that a failure to warn the plaintiff is all the negligence charged. The previous portion of the petition charged a negligent switching of the cars by the switching crew.

Whether the negligence charged falls within the purview of the federal act is best determined from the wording of that act. U. S. Statutes at Large, vol. 35, p. 65, § 1 (U. S. Comp. St. 1...