Young v. Terminal R. R. Ass'n

Decision Date11 February 1946
Docket NumberNo. 39428.,39428.
Citation192 S.W.2d 402
PartiesYOUNG v. TERMINAL R. R. ASS'N OF ST. LOUIS.
CourtMissouri Supreme Court

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.

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 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 plaintiff, to look out for plaintiff's safety; that, to be effective, in superseding plaintiff's duty, a custom must have the force and effect of law; and that the evidence in the instant action does not establish the essential definiteness, certainty, uniformity and universality of the custom relied on by plaintiff. Moreover, defendant contends, there was no evidence of the violation of any such custom, even were the custom established by the evidence.

It has been said that an employee working for an employer is engaged in the same business as the employer, and as between them the custom need not be proven with such fullness as would make it a rule of common law. O'Donnell v. Baltimore & O. R. Co., 324 Mo. 1097, 26 S.W.2d 929; Mitchell v. Wabash R. Co., 334 Mo. 926, 69 S.W.2d 286; Armstrong v. Mobile & O. R. Co., 331 Mo. 1224, 55 S.W.2d 460; and St. Louis & S. F. R. Co. v. Jeffries, 8 Cir., 276 F. 73. The existence of a custom may be proved as any other fact. If there be substantial evidence tending to show the existence of the alleged custom, the issue is none the less submissible because of a conflict of the evidence. Brock v. Mobile & O. R. Co., 330 Mo. 918, 51 S.W.2d 100; Mitchell v. Wabash R. Co., supra. Indeed, in the instant case, there was no evidence refuting plaintiff's testimony of the custom or practice of a switch crew to give an airman advance advice of switching movements; and defendant's witness, the foreman of the switch crew, testified that it was customary, "twenty-four hours a day," for the members of the switch crew "to tell an air man what moves are to be made."

As we have seen, there was substantial evidence tending to show that plaintiff was not informed, nor was he warned, of the particular switching movement onto Track No. 18, but, on the contrary, had been told that the movement contemplated by the switch crew was the movement of the two private cars from Track No. 19 to Track No. 18.

A contention of defendant that the testimony of plaintiff was so unsubstantial as to be of no probative value is based upon plaintiff's inability to identify the member of the switch crew who gave him information of contemplated switching movements; and plaintiff's testimony that he was "pretty sure it (the switching movement immediately prior to that during which he was injured) was on 14," whereas other witnesses stated the movement occurred on Track No. 13. These matters were, no doubt, considered by the jury in determining the weight and credit to be given plaintiff's testimony.

Defendant contends that, as a matter of law, the plaintiff, having a duty to look out for himself, in failing under the circumstances to observe the approach of the combination car and engine, was negligent; and that such negligence was the sole proximate cause of his injury. Giving import to the custom to advise airmen in advance of switching movements, plaintiff was not bound as a matter of law to anticipate a switching movement on Track No. 18 of which he had not been advised or warned; especially is this true, in view of the information he had been given that the next switching movement would occur on Track No. 19. Had plaintiff, an airman, been informed or warned of the switching movement onto Track No. 18 it may be reasonably inferred that the plaintiff, anticipating the movement, would not have stepped onto Track No. 18, and so would not have been...

To continue reading

Request your trial
23 cases
  • McGarvey v. City of St. Louis
    • United States
    • United States State Supreme Court of Missouri
    • 14 Febrero 1949
    ......K.C., St. L. & C.R. Co., 199 Mo. 386, 97. S.W. 910; Taylor v. Terminal Railroad Assn., 112. S.W.2d 944. (12) Even if the evidence was not ... M.-K.-T.R. Co., 354 Mo. 439, 189 S.W.2d 568, l.c. 577;. Young v. Terminal R. Assn. (Mo. Sup.), 192 S.W.2d. 402, l.c. 406; O'Brien v. ......
  • Van Campen v. St. Louis-San Francisco Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 13 Diciembre 1948
    ...... 749; Johnston v. St. Louis, 138 S.W.2d 666;. Walsh v. Terminal R. Assn. of St. Louis, 353 Mo. 458, 182 S.W.2d 607; Better Roofing ... purchasing power of money at the present time. Young v. Term. Railroad Assn., 192 S.W.2d 402; Petty v. K.C. Pub. Serv. Co., ......
  • Meierotto v. Thompson
    • United States
    • United States State Supreme Court of Missouri
    • 10 Marzo 1947
    ...into the case, citing McCurry v. Thompson, 352 Mo. 1199, 181 S.W.2d 529 and Young v. Terminal R.R. Assn. of St. Louis, 192 S.W.2d 402. In the Young case trial court refused to give an instruction for the defendant submitting assumption of risk as a defense. This court correctly ruled that a......
  • Ford v. Louisville & N. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 9 Septiembre 1946
    ...... Finley v. St. L. & S.F. Ry. Co., 160 S.W.2d 735;. Miller v. Terminal Railroad Assn. of St. L., 163. S.W.2d 1034; Hancock v. K.C.T. Railroad ...Paul Ry. Co., 284 Mo. 26,. 223 S.W. 413; Young v. Wheelock, 333 Mo. 992, 64. S.W.2d 950; Meily v. St. Louis & S.F.R. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT