Young v. Terminal R. R. Ass'n, No. 39428.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Van Osdol
• Citation: 192 S.W.2d 402
• Parties: YOUNG v. TERMINAL R. R. ASS'N OF ST. LOUIS.
• Decision Date: 11 February 1946
• Docket Number: No. 39428.

192 S.W.2d 402 YOUNG
v.
TERMINAL R. R. ASS'N OF ST. LOUIS. No. 39428. Supreme Court of Missouri, Division No. 1. February 11, 1946.

Appeal from St. Louis Circuit Court, Division No. 7; Ernest F. Oakley, Judge.

Action under the Federal Employers' Liability Act, by Maurice Young against the Terminal Railroad Association of St. Louis, a corporation, for injuries sustained during switching operations. Judgment for plaintiff and defendant appeals.

Affirmed.

[192 S.W.2d 403]

Warner Fuller and Arnot L. Sheppard, both of St. Louis, for appellant.

Roberts P. Elam, of St. Louis (Tautges, Rerat & Welch, of Minneapolis, Minn., of counsel), for respondent.

VAN OSDOL, Commissioner.

Action under the Federal Employers' Liability Act, § 1 et seq., 45 U.S.C.A. § 51 et seq., for injuries sustained by plaintiff during the performance of a switching movement in defendant's Jefferson Avenue yard in St. Louis. The jury awarded plaintiff $15,000 damages, and defendant has appealed from the ensuing judgment.

Defendant's Jefferson Avenue yard consists of twenty-four switch tracks running east and west. The tracks are numbered, south to north, one to twenty-four; the east ends of the even-numbered tracks are connected with a lead track running in a northwest-southeast direction; the odd-numbered tracks do not connect directly with the lead, but each connects with a track of the lower even number. Plaintiff was an "air man," whose duties were to couple and uncouple air, signal and steam hose between cars being moved or switched in defendant's yard.

There was substantial evidence tending to show the following facts. Plaintiff worked on the third shift, 11 p.m. to 7 a.m.; reported for work at 11 o'clock the evening of November 25, 1943; and was directed by the yardmaster to report to Track No. 22 to relieve an airman working with a (second shift) switch crew using Yard Engine No. 116. The switch crew, in addition to the engineman and fireman, consisted of a foreman, a headman, and a rear or long field man. Plaintiff as an airman had no duty to couple or uncouple hose between a car and the engine; this duty was performed by the headman of the crew. Plaintiff customarily got his instructions preliminary to switching movements from the members of the crew, being instructed concerning "maybe two or three" switching movements in advance; when the execution of these movements was completed, he would be told the next moves which were to be made. Plaintiff was unable to state the identity of the member of the switch crew who gave him instructions the evening of his injury.

When plaintiff reported to Track No. 22 he was told the crew intended to "pick up" a private car and come back in on Track No. 18 — there to get another private car — and to set both private cars on Track No. 19; thence to pick up two coaches on Track No. 18 and set on Track No. 13 (or No. 14); thence to Track No. 19 to move the two private cars to Track No. 18.

Because of a failure of the couplings of the private cars, the movements were not executed as planned but the one private car coupled to the engine was set on Track No. 19, and by an extra movement the other private car was moved from Track No. 18 to Track No. 19. Plaintiff had no duty to perform in the execution of these movements. The crew then picked up three cars on Track No. 18, a "combination car" and the two coaches, and moved to Track No. 13 where the two coaches were to be set. Plaintiff was told, "We are going to * * * hold onto the head car and leave two." Plaintiff there uncoupled the hose between the combination car and the coach (second car from the engine). Plaintiff was then told, "Now, we are going to 19 and pick up these two private cars, shove them to 18, leave them and go home." As the switch engine with the combination car moved eastwardly along Track No. 13, plaintiff started to Track No. 19 to be there available to make the coupling of the hose between the combination car and the easterly of the two private cars which were (he had been told) to be moved to Track No. 18. Walking northwestwardly, plaintiff came to a concrete walk between Tracks Nos. 17 and 18 from which point he saw the combination car (pushed by the engine) coming at a speed of five or six miles per hour on the lead track about two car lengths away; he thought the engine and combination car would move onto Track No. 19. Plaintiff walked toward the west on the concrete walk 25 or 30 feet, half-turned to the right, and, moving diagonally, started to step onto Track No. 18, "* * * just as I went to make the step to go over the rail I heard something; I glanced around and I seen the cars (on Track No. 18) within about five or six feet of me; I seen I couldn't make it across but I had to make my step, I couldn't stop. I wheeled right quick to get back; I stubbed my toe and fell and this (right) pants leg here caught on the end of the brake beam on a cotter key —." He was dragged for a distance of between 65 and 72 feet; and his left foot and ankle were crushed by the wheels.

The plaintiff's case was submitted to the jury upon negligence in failing to observe

192 S.W.2d 404

an alleged custom or practice to give airmen timely notice, warning and information as to movements of cars, engines and trains upon or about which airmen were required to work and specific information as to the particular track or tracks upon which such movement of cars, engines and trains would be made. The issue of plaintiff's alleged negligent failure to look to the eastward before stepping onto Track No. 18, as the sole proximate cause of the injury, was also submitted at defendant's instance.

Defendant-appellant contends that no submissible case was made out by plaintiff. It is urged that plaintiff had the duty to look out for himself; that only the law, a rule of defendant, or a controlling custom will place the duty upon defendant, rather than...