Young v. Missouri-Kansas-Texas R. Co.

• Decision Date: 23 April 1936
• Docket Number: No. 33014,33014
• Parties: YOUNG v. MISSOURI-KANSAS-TEXAS R. CO.
• Court: Missouri Supreme Court

100 S.W.2d 929

YOUNG v. MISSOURI-KANSAS-TEXAS R. CO.

No. 33014

Supreme Court of Missouri, Division No. 1.

April 23, 1936.

Rehearing Denied November 12, 1936.

Motion to Transfer to Court in Banc Denied December 14, 1936.

Appeal from Circuit Court, Cooper County; Nike G. Sevier, Judge.

Suit by Riley C. Young against the Missouri-Kansas-Texas Railroad Company. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Carl S. Hoffman, of St. Louis, Pendleton & Martin, of Boonville, and Montgomery, Martin & Montgomery, of Sedalia, for appellant.

W. W. McCanles, of Los Angeles, Cal., and Ronald Shankland, of Kansas City, for respondent.

HYDE, Commissioner.

This is an action, under the Federal Employers' Liability Act (U.S.C.A. title 45, §§ 51-59) for damages for personal injuries. The negligence charged was that the engineer of defendant's switch engine moved cars back without a signal from plaintiff and without warning so that plaintiff's left arm was caught between the couplers. The answer was a general denial and assumption of risk. Plaintiff obtained a verdict for $10,000. Defendant has appealed from the judgment entered on this verdict.

Defendant contends that plaintiff failed to make a case for the jury because plaintiff's account of the accident was contrary to the physical facts and was inherently impossible. We, therefore, state the facts which the evidence tended to show when viewed most favorably to plaintiff, and also a part of the defendant's witnesses' testimony. The interstate character of plaintiff's work at the time he was injured was conceded. Plaintiff was a switchman in defendant's Kansas City yards, working from midnight to 8 a. m. Defendant's main yards, known as Glen Park yards, were located in Rosedale, Kan. Defendant had a freight house at Seventeenth and Wyoming streets in Kansas City, Mo. About 4 a. m. on January 20, 1932, plaintiff was at this freight house with a switching crew consisting of H. W. Williams, foreman, J. W. Williams, engineer, W. E. Cox, fireman, plaintiff and Elmer Bidwell, switchmen. The engine pulled out from the freight house with seven cars on what was called the Valley tract, which ran from this freight house to Allen avenue where the Santa Fé had switch tracks. The three cars next to the engine were to be delivered to the Santa Fé at Allen avenue and the four rear cars were to be taken to the Glen Park yards. The Santa Fé tracks at Allen avenue ran north and south, and defendant's train came south on the Valley track, parallel with Santa Fé track No. 4. The Valley track then curved to the east and ran into track No. 4, a short distance north of the Santa Fé yard office. There was a water crane a few feet north of the switch stand where the connection was made. When defendant's train approached the switch on that morning, there was a Santa Fé engine at the water crane, apparently this Santa Fé engine was on track No. 4. Defendant's train stopped on the Valley track while foreman Williams went to the Santa Fé yard office to find out where the three cars for the Santa Fé were to be placed.

There is some conflict about how near defendant's engine was to the water crane when it was first stopped. This matter has some bearing upon the alleged subsequent movements and how far plaintiff was from the water crane when he was injured. Foreman Williams testified that he measured the distance "from the point of the switch where the Valley track comes into No. 4 to the beginning of the curve," where the Valley track commences to curve to the southeast to run into track No. 4. He said this distance was 135 feet. In this he was corroborated by the Santa Fé assistant yardmaster, who was plaintiff's witness and who said that it was about 130 or 140 feet "from the switch point back to the curve," estimating by car lengths. Defendant's contention is that the engine stopped at the beginning of the curve, and did not come up near the water crane until after the Santa Fé engine left. Plaintiff said the engine stopped just far enough north of the water crane to clear track No. 4. According to plaintiff's version (corroborated to some extent by Bidwell), the front end of the engine was from about 10 to 15 feet north of the water crane when it first stopped.

When the Santa Fé engine moved on to the south, foreman Williams told the switchmen that the three cars for the Santa Fé were to be placed on track No. 4 north of the Valley track connection. To accomplish this, it was necessary to uncouple the four rear cars and leave them on the Valley track where they would be clear of track No. 4; then pull the three cars through the switch south of the water crane; then close the switch and push the three cars, to the north of the water crane, on track No. 4; then uncouple the engine and move it south of the switch again so that it could be opened to allow the engine to back north on the Valley track and pick up the four cars left there. When the train stopped, plaintiff walked up to the front part of the engine, and, when he got the foreman's order, he signaled the engineer to move ahead. The engine moved south and was stopped on plaintiff's signal when the north end of the third car back of the engine was opposite plaintiff. The switchmen worked on the right (west) side of the train and the engineer was on that side. Plaintiff remained standing where the engine had first stopped, which, according to his version, was 10 to 15 feet north of the water crane. This is disputed by defendant's testimony which placed the engine at the water crane after it moved up and put plaintiff about where the Valley track curve from a straight north and south track began. Plaintiff said he was standing "right there about the point of the curve * * * where the Valley track begins to curve to connect up with No. 4." It is now disputed whether this meant the first part of the curve from the straight part of the Valley track or the last part of this curve, going into track No. 4, just north of the water crane. Bidwell marked near the latter on a picture in evidence to show where the engine first stopped, but he said the engine never moved south from that point before plaintiff was hurt. Plaintiff said positively that it did.

There is no controversy about the next movement, although where the engine stood at that time is a vital disputed question. Plaintiff said that he closed both angle cocks and broke the air hose between the third and fourth cars; that he made one attempt to pull the pin but could not do so because of the tension between cars; that he then gave the signal for an easy back-up; and that, when the train came back, he pulled the pin. On this movement the witnesses agree that the train only moved two or three feet. The engineer said that it "just rolled back"; that he did not believe he gave it any steam; and that "when you reverse an engine, under those circumstances, sometimes the steam in the cylinder will cause it to go back a few feet." The Valley track was down grade to the north. Before this back-up movement was made, Bidwell, the other switchman, had taken a position west of the track to relay plaintiff's signals to the engineer. Plaintiff said Bidwell was between fifty and one hundred feet south of the water crane. He did relay plaintiff's "signal for slack," and he claims no other signal was given. It is not disputed that the engineer was "supposed to work by signals at all times" and especially not to move without a signal.

It was defendant's contention that plaintiff was injured on this movement. Defendant's theory is that plaintiff, after pulling the pin on the easy back-up movement, went between the cars and reached over the top of the drawbar to turn the angle cock on the west side of the train with his left hand, in order to open the air and stop the cars that were uncoupled; and that the slack running back between the cars caused plaintiff's arm and side to be caught and pinched between the drawbars. Defendant says: "If plaintiff had pulled the pin on the north car when the first movement of the engine released the tension, and had then reached over to have turned the angle cock with his left hand, and the slack came back, * * * it is very easy to see how the coupler would catch his arm where his arm was injured, and how the slack rolling back against the cars would close this coupler again and pinch plaintiff's side which was up against the very piece of the coupler that must rotate."

Plaintiff, however, testified that he was not injured on that movement. He denied that he stood between the cars and reached over the drawbars with his left arm to turn the angle cock. He said that he was not tall enough to reach over the drawbars that way and turn the angle cock. His height was five feet, six and three-quarters inches. He said he had turned it off by hanging on the grabiron with his left hand and reaching over and turning it with his right hand. Defendant's foreman, Williams, said that the height of the top of the coupler above the ties was about four feet; that a man plaintiff's size could stand on the ground and reach over and get the angle cock "by getting up against the drawbars" and in so doing, his arm would lay across the coupler"; but that "ordinarily when you do reach over to pull an angle cock you use your right hand." He said that he would not try to stand on the track and do that with his left hand. He was six feet, one inch tall.

Plaintiff's account of what happened, after he pulled the pin, was that he gave a stop sign and then a go-ahead sign. He said that the engine and cars moved ahead (south) eight, ten, or fifteen feet and stopped "somewhere near the switch point," without a signal from him; and that he gave no other signal thereafter. He said that the four uncoupled cars were not well in the clear of track No. 4 so he let them roll back ten, fifteen, or twenty feet before he tried to stop them. He said he then looked back and saw the cars...