147 Mo. App. 301 | Mo. Ct. App. | 1910
Plaintiff’s former husband was killed by one or two of defendant’s freight cars running over him on January 10, 1903. The deceased was then and had been for four or five months a switchman in defendant’s railroad yards in the city of Cape Girardeau, and it was part of his duty to couple and uncouple cars while trains were being made up or changed on the tracks in the yards. In the performance of this duty he attempted to uncouple two freight cars from a train of eleven cars which was in backward motion at the rate of four to six miles an hour, and held together by couplers with lever attachments that could be reached by an employee and manipulated so as to uncouple cars without going between them, as the lever extended to within
“We was at the south of what we call the track lead, and was backing toAvard track No. 7, that crossed this Gulf track, and Jase was standing there, and I told him to cut off two cars and he caught hold of the lever and run along five or six feet, and dropped the lever and caught hold of the hand hold, and put his feet on the brake beam and his foot slipped off the brake beam. And I says Hook out Jase,.you will get your feet in that frog,’ and he urns trying to get his feet away from the wheels, and he fell kinder on his hands and knees; and I saw the Avheels was going to run over him and I turned around.-
“Q. I)id he take any steps after his feet slipped off the brake beam? A. It looked like he went four or five feet with his right foot Avobbling along the ground*309 or rail, trying to get Ms feet away from tbe wheels.”
One witness said just before deceased slipped off the brake beam, he “had his left hand a hold of the pin lifting rod to cut the cars, and had the right hand upon the grip iron.” The accident occurred in 'daylight at the intersection of two tracks, where there are what are termed “frogs” at tbe junction of the rails and a* guardrail running parallel to the outside rail. This-guardrail is sometimes called a frog,” too, though technically a frog is a different contrivance. The guardrails are probably twelve or fourteen feet long ‘ and placed by the side of the main outside rails of the track,, with a space two and one-lialf to four inches Avide between the two for the flange of the car A\rheels to run in. Each end of the guardrails is flared so as to make the distance betAveen it and the outside rail Avider at the ends for a foot or a foot and one-half than is tbe space between the tAvo rails where they run parallel to each other. When help reached deceased he was lying across the rails Avith his head and feet Avest of the west rail. His left shoe bad two streaks of rust about three inches long, three-quarters of an inch above the sole and on either side. There was also a crease on the inside edge of the sole under the instep and “the spur piece was cupped up.” Another witness said the sole was cupped and torn loose at the heel from the upper, and the marks on the upper were like they had been made by the balls of the rails. Witnesses differed as to tbe injury to the foot. Plaintiff swore it was mashed as flat as her hand, and another AA'itness said it was mashed in at the instep; but the doctors said there AATas only a hole one could stick a finger in on top of the foot behind the third toe and reaching to the bone. The theory of plaintiff’s casé-is that her husband, after his foot slipped off the brake beam and while he Avas walking along the track, struck the toe of his left shoe between the guardrail and the-main rail and it hung there, causing him to be jerked down as the car he was holding to moved on, and the car
Perhaps some other facts would better be stated or items of testimony as given by the witnesses. A witness for plaintiff (Buckner) said deceased was running along between the cars, and.“all at once he went down, right down under the wheels like something had jerked him — went right down that quick” (indicating). Witness saw him take hold of the lever as if to cut off a car. Deceased was between the cars when he saw him take hold of the lever and he ran aiong, witness supposed, for twenty yards after he had taken hold of the lever before he fell down; that he had hold of the lever. It is to be noted this witness and all the others but White testified to nothing going to show deceased endeavored to manipulate the lever of the safety coupler, except the statement about his walking or running by the side of the cars with his hand on it. At one place in his testimony White said, when asked how far deceased had gone before he got on the brake beam: “I couldn’t say; seven or eight feet he run along there holding the lever up.” Again White said deceased walked by the side of the cars “from seven to ten feet or somewhere along there.” Buckner was standing about forty feet from the deceased; White was standing nearer. Besides portions of his testimony copied supra, the latter said: the cars were running five or six miles an hour when deceased went between them and put his feet on the brake beam; that deceased went but a few feet before falling after his feet slipped off the brake beam; that it was not necessary for him to go in there at all. When asked if the incidents he had detailed “occurred in almost an instant’s time,” he answered; “Yes, sir, a short space of time.” Another witness who testified for defendant said:
“Q. Were you present when the accident happened? A. I was off at a very little distance, and saw the accident.
*312 “Q. State in your own wTay wbat happened there, exactly? A. Well, Mr. Brannock was a switchman, as I understand what he was doing, and they were kicking two box cars on the side track and Mr. Brannock had hold of the pin lift rod to make the .uncoupling with his left hand, and right hand hold of the grip iron on the end of the car; and he went to place his left foot upon the brake beam, and his foot slipped off; and it seemed to me when his foot slipped off he lost control of his wits, and let loose of the iron grip round, and fell directly there over the railroad track with his left leg across the rail, . . . the train was going south.”
Said witness stated a brakeman would not necessarily have to go between the cars in order to uncouple them, as there was a lever to use which rendered it unnecessary to go between the rails; that after the feet of deceased slipped off the beam he did not take a step; that there was a grip iron at the end of the car eighteen to twenty inches long “intended for the protection of switchmen and bralcemen to hold to.” Another witness said he did not see Brannock get hold of the car, but saw his foot on the brake beam and “it looked like it slipped off as he put it on and the wheels struck him; I was standing to the east side of the track and across the track.” This witness saw Brannock jump on the brake beam and said it looked like his foot slipped and he went under the wheels. The physician who attended deceased testified the latter stated to biin while in the hospital “that he (Brannock) had slipped off the beam.” A witness testified the accident occurred about four-thirty in the afternoon, when there was good daylight. The unblocked places between the main rails and the guardrails at the intersection of the tracks had been as they were throughout the period deceased had worked in the yards.
The main instruction for plaintiff, and the only one given at her request, except those on the measure of damages, told the jury, in effect, if they found her hus
Some circumstances which would throw light on the casualty and assist in reaching a right conclusion are not in proof. No testimony was introduced as to the condition of the coupling appliance, whether it was in good or bad repair, rusty or worked freely, how long it commonly takes to lift a coupling pin by a lever when the appliance is in good order, and what is a reasonable effort to lift it by the lever. We disposed of the case at first on the assumption the safety coupler was in good order, because the abstracts of the record on which the case was submitted showed plaintiff’s counsel induced the court to exclude evidence offered by defendant’s counsel tending to prove its condition. A motion for rehearing was filed and counsel agreed this was an erroneous recital in the abstract, that no such evidence was offered at the trial, the mistake was due to evidence having been offered at the first trial and excluded, and in making up the present abstract, by inadvertence the offer and ruling were shown as though they occurred at the second trial. The court below instructed the jury against a verdict for plaintiff if deceased went between the moving cars in violation of a regulation of defendant, but evidence of what the rules were was rejected, because defendant offered secondary evidence; hence this instruction related to a question on which there was no evidence. If there were rules on the subject, likely they were relevant to the issues. Neither was any testimony put in about whether there was a custom at the yards for employees of defendant to go between moving cars to couple or uncouple them when the safety coupler failed to work, what the brake beam was, how it was contrived, whether it was a safe place for a brakeman to place himself, the usage of employees, to get on it, and defendant’s knowledge of the usage. The case would have been clearer if it had been more
Tbe evidence, especially that as to tbe creases, bends and general condition of tbe shoe of deceased, pointed directly enough to tbe conclusion that bis foot caugbt between tbe main and tbe guardrail, to remit tbe issue to tbe jury for a finding, and we overrule tbe contention to tbe contrary.
A more perplexing problem is whether tbe facts in proof so plainly demonstrated contributory negligence on tbe part of the deceased that tbe court should have directed a verdict for defendant. Tbe action was brought and first tried on tbe supposition that such a defense could not be pleaded in a case founded on a violation of the statute requiring railway companies to block frogs and guardrails, and tbe portion of tbe answer pleading the defense Avas struck out. But on tbe appeal the Supreme Court held this was error and rejected as unconstitutional tbe clause of tbe statute which declared tbe defense incompetent; declining, however, to pass on any other question than tbe error assigned on tbe trial court’s ruling, in striking out tbe portion of tbe answer wherein contributory negligence was pleaded. [Brannock v. Railroad, 200 Mo. 561, 98 S. W. 604.] Many cases more or less resembling this one have been cited by counsel on tbe question of whether tbe court should have taken tbe issue of contributory negligence from tbe jury. We have read them all and will say something of their bearing before dealing with tbe point on tbe facts in proof. Some of them cannot influence onr decision because they were determined by a rule of law not accepted in this State in such cases; tbe decisions having been against recovery, rather because tbe injured person Avas held to have assumed tbe risk of working about unblocked frogs or guardrails, than because of bis contributory negligence. [Denver, etc., R. R. v. Arrighi, 129 Fed. 347; Wood v. Locke, 148 Mass. 504; Gillin v. Railroad, 16 Am. and Eng. R. R.
In other cases cited for defendant, and particularly those from Federal courts, verdicts for plaintiffs were set aside on the ground the injured employees were shown conclusively to have been guilty of negligence contributing to cause the. accident, when, as we think, the evidence on that issue would have been left to the jury if the decisions of the appellate tribunals of this State had controlled. Nevertheless those opinions are instructive and have shed light on the question we are to decide; for they proceeded on the theory that the true inquiry was whether the employee had needlessly exposed himself to danger. [Grand v. Railroad, 83 Mich. 564; Morris v. Id., 108 Fed. 747; Dawson v. Id., 114 Fed. 870; Gilbert v. Railroad, 128 Fed. 529; Riley v. Id., 133 Fed. 904; Suttle v. Id., 144 Fed. 668; Powell v. Id., 159 Fed. 864.]
Still others of the cited cases differ from this one in material facts. [Hamilton v. Mining Co., 108 Mo. 364, 18 S. W. 977; Hollenbeck v. Railroad, 141 Mo. 97, 38 S. W. 723, 41 S. W. 887; Lee v. Railroad, 195 Mo. 400,
The authorities appealed to by counsel as supporting their respective positions not being exactly in point, we must reason on the facts before us in the light of general principles. The prevalent rule is, that an employee who goes between moving cars joined by link and pin, to couple or uncouple them, is not necessarily guilty of negligence as a court matter. [1 Labatt, Master & Servant, section 855; 5 Thompson, Negligence, section 5595 and. cases cited in notes to texts.] We have found no Missouri cases where the rule was declared, but several where it must have been taken for granted. [Hollenbeck v. Railroad, 141 Mo. supra.] Whether such an act is negligent or not, depends on its coincidents, especially the speed of the cars; and probably there would be no legal conclusion of negligence if the speed was not more than four to six miles an hour, the rate of motion of the cars deceased attempted to cut. The aspect of the question is altered when some device like a coupling stick, has been provided to enable cars to be cut or coupled without taking the risk of entering between them, and a rule prescribed forbidding the latter method. In such a case an employee who, in violation of the rule, resorts to the more dangerous method, instead of the safer one, is justly denied recovery. [Schaub v. Railroad, 106 Mo. 74, 16 S. W. 924; Francis v. Id., 110 Mo. 387, 19 S. W. 935; 5 Thompson, Negligence, sections 5583, 5585.] But if a condition arises which prevents the use of the safer method and an employee goes between the cars, the propriety of the act ought to be determined according to the principles which would apply if no safety device had been furnished, and courts have held it will be. [Citations in 5 Thompson, section 5585.] Beyond doubt if an automatic safety coupler designed to protect train crews from the hazards of coupling and parting cars by the old method has been provided by a railway company, and especially when
The next inquiry is, did plaintiff introduce evidence which sufficed to send the issue to the jury?1 In our first opinion we answered this question in the negative in consequence of taking for granted the safety coupler was in good working order, because plaintiff’s counsel appeared to have prevented the reception of evidence offered to prove it was. As said supra, the record on which the appeal was submitted was incorrect in so stating, and correcting the mistake has taken away a circumstance very adverse to plaintiff’s case. Plaintiff ought not to be concluded by White’s testimony that it was unnecessary for deceased to go between the cars; for though he was her witness, that remark was an
If the triers of the fact should find deceased was warranted to go between the cars, there remains the further question of whether he was warranted to take the risk of stepping on the brake beam. In other words, whether, all his acts and the situation and conditions considered, he exercised ordinary care. Thus much concerning the demand for a nonsuit.
We. are urged to declare that even if deceased was careless, his carelessness did not contribute to the tragedy, because the unblocked space intervened and became the proximate cause of it. The evidence is uniform that the entrance of deceased between the cars and his stumble and fall, happened in a second or two, and we think if it be found he negligently, that is, without reasonable necessity, went between, or negligently stepped on the brake beam,- his conduct must be treated as a concurrent cause with defendant’s. So the immediate point was ruled on satisfactory reasoning and similar facts in the Morris, Gilbert and other cases, supra. In Lake Erie, etc., Co. v. Craig, the question whether a trainman who was injured by catching his foot in an open frog, had proximately contributed to the accident by needlessly going between cars, was ruled to be for
Tbe main instruction for plaintiff was erroneous because it omitted from consideration tbe defense of contributory negligence, and some of tbe instructions for defendant were too favorable.
Tbe judgment is reversed and tbe cause remanded.