*1 OCTOBEE 1924. TEEM, Jordan, Connecting Ry. v. East St. Louis ERNEST JORDAN v. EAST LOUIS ST. CONNECT
ING COMPANY, Appellant. RAILWAY April One,
Division 1925. Straight Safety Appliance: 1. RAILROAD: Drawbar: Out-of-Line being straight Track. The a a track knuckle of railroad car on being play and allowed conceded that some lateral must be automatically couple drawbars, in- the failure of its Safety company comply dicates that the U. S. the failed to with Appliance Act, and, explanation by the in the absence of an believed jury, overruling case authorizes the of a demurrer -to injured when, performance as a foot in his duties whose switchman, the of kicking attempted by line to force the drawbar into it. Automatically -: -: —--: Failure to Instruction: Couple. performance switchman, the in his duties re- Where the track, lating straight noticed of railroad cars aon drawbar six and the
that the knuckle a certain car closed line, the and nearer inches out of and went the ear another between attempted push engine, opened knuckle, the the then and, being so, braced line with his hands unable to do drawbar into against tried to car and the corner of the himself with his hands foot, push nearer line with his car kick or drawbar into telling engine foot, an instruction came on and crushed they “were not cars if find from the evidence that impact, automatically, by couplers coupling without with by plaintiff going the ends of the between part this, be this whole or caused reason injured,” him, ignore pleaded not must their verdict be for does excessive, play the’ drawbar not that the lateral defense Safety a violation of is where case is based on not error provisions Act, coupled Em- Appliance Federal with the Liability ployers’ Act. Play -: of Drawbar. In an -: -: Excessive -:3. equip by cars a railroad based failure action switchman required S.U. manner automatic with telling Appliance Act, Safety defendant instruction asked equip cars drawbars could that “the failure to up lined n law, sole but the itself violation not in constitute does play you question the amount of is whether decide refused, properly where was excessive” drawbar in MISSOURI, SUPREME COURT OF Jordan v. East St. Louis straight, the evidence is that track drawbar was six inches curves out of line and that the lateral of cars at from four six inches. Such evidence does demand *2 every contingency except single lack be excluded one alignment play. of correct to due excessive 4. -:-: Violation of Rules. A violation a rule defend- contributory forbidding employees ant negligence, to kick drawbars is at most contributory negligence de- neither a constitutes mitigation in case violation the U. S. fense nor a founded on a Safety Appliance requiring Act railroad cars to be couplers, consequently not error refuse automatic permit defendant to rule offer such as evidence. Injury Ten Dollars: to Root. -EXCESSIVE VERDICT: Thousand 5. employed thirty-four years age, had been Plaintiff was chiefly years. right foot he as a switchman for fourteen With his on-coming car kicked the drawbar which was out of line and the earning hundred At the time he had been two crushed his foot. hospital per injury After the he was confined to dollars month. trial, months, after eleven months six and at the time of anything, injury, and could walk he had not been able to earn aid There was a distance without the of crutches. no considerable metacarpal compound bones of the fracture the first and second out; place top foot; in- of the foot came a sore on the some bones trial; permanently he is bone the time of the dicated diseased at following calling. Held, that a verdict his former from disabled dollars is not excessive. thousand for ten Servant, Master and 1: 39 C. J. Headnote Headnotes: Citations Servant, 1403, 1414. J. 2: Master 3.9C. secs. 1331. Headnote sec. 4; Servant, 1402, secs. 1414. Headnote Master and 39 C. J. 3: Headnote Master and 1105, 1032, Servant, Dam- 1243. Headnote 5: 39 C. J. secs. ages, 445. J. sec. 17 C. Court. —Hon. Charles City Louis from Circuit St. Appeal Rutledge, W. Judge.
Affirmed. for appellant. Blodgett and R. E. Howell
J. L. been have the evidence should demurrer (1) 19(j States, United Railroad v. & P. M. St. C. sustained. OCTOBER TERM, 1924. 33 Jordan v. East St. Louis
Fed. 882; O. M. & St. P. Railroad v.
129
Yoelker,
Fed.
526; Davis v. Hand, 290
73;
Fed.
Smith v. Public Serv-
Corporation
ice
Jersey,
of New
Pittsburgh,
75 Atl. 937;
C. G. & St. L. Railroad v. Cozatt, 79
E. 534;
N.
Lindvall
Cooley
Woods, 44
(2.
p.
Fed.
Ed.)
857;
on Torts
73;
Metropolitan
Ry
Glenn v.
App.
Street
167
Co., Mo.
109.
(2)
giving
The court
reading
erred
requested by
plaintiff.
Instruction
City
1
Atlantic
Chesapeake
Railroad Co. v. Parker,
(1) years’ Proof that a switchman ex- of several perience together attempting while two cars by pin using found the lever on out- that, or lifter side of he could not the knuckle of the car, throw open preliminary the car to the car opposite proof it, that the two undertaken cars coupled standing straight on were track and the drawbar on one of the reason of lateral couple automatically was out by line that it would not so impact without the opening hands
between the the knuckle with his cars, alignment, pushing kicking drawbar into injured adjusting proof while coupler proof to entitle is sufficient not in the con- were to find that the Safety Appliance required Act. Grand dition Lindsay, L. 42, 58 233 W. U. S. Trunk Railroad Go. v. Sup. Mo. 308 —3.
34 MISSOURI, SUPBEME COUBT OF y. Connecting Ry. Co. East St. Louis
Jordan
Wagner,
By.
Ed.
v.
842;
Antonio &
P.
San
A.
Co.
Hogenleitner
Co.,
241
177
U. S.
Pac.
476;
Southern
v.
Chicago,
v.
Bailroad Co.
796;
Fed.
Bock
& Pac.
Island
Bay,
(Okla.)
Quincy & G.K.
168 Pac.
Noell v.
O.
999;
City Bailroad Co.
Bailroad
Atlantic
Co.,
but are connected and indivisible purview Safety Appliance operation within Chicago Voelker, 129 Act. & P. Bailroad Co. v. M. St. 522; 196 IT. Co., v. Southern Pac. Fed. Johnson 363; Poole, Trunk Bailroad L. Ed. Western Go. Grand Minneapolis 567; & St. L. Ind. Burho v. 175 Minn. Wagner, By
326; Antonio A. San & P. *4 24, v. Railroad Sim- 241 S. W. U. Southern Co. S. (3) court did not 459. The 651, 105 Va. 55 S. E. mons, reading jury plaintiff’s giving In- to err 1, law. was based followed struction Wagner, Ry. 241 v. H. A. P. San Antonio & Co. Lindsay, 476; 58 42, H. S. W. R. 233 Grand Trunk Co. v. paragraphs. in-preceding L. Authorities cited 842; Ed. give refusing, (4) read not err in to did court following 4, jury Instruction defendant’s (a) in conflict the instruction Because reasons: (b) defend- 1. Because Instruction 35 Jorüan v. East St. Louis permitted jury
ant’s offered instruction find couple, though couplers defendant, even would not automatically necessity plain- by impact without the tiff cars. instruction between the offered This have should whether submitted automatically couple or by not defendant’s cars would impact plaintiff going without the be- (c) tween the ends of the evidence Because open that the shows tried to the knuckle of the coupler pin lever or means of the lifter the out- from attempts finally side of the several car, and after had to open coupler between the cars the knuckle with his atid hands, while between cars ad- justing coupler he noticed that the drawbar also couple automatically by out of line and im- pact, and with evidence defendant’s instruction permitted plaintiff, should have to find for they found that the -went between the ends of open having the knuckle with hands after pin failed same outside, lifter on jur}' have should authorized the find for necessitating plain- if the -was also out line, suing adjust (d) tiff the cars to it. Because all the evidence in this case show's track was place straight at the where was to be made plaintiff, required bv the and defendant under the Safety Appliance keep Act and the decisions thereon onuipped its cars wdth which will un- couple automatically oven on San curves. Antonio & Wagner, Chicago, P. 241 A. Co. v. S. 476; U. Rav, (Oída.) Island Rock Co. v. Pac. Railroad 168 Pac. & TTogenleitner 796; v. 999: Southern Pac. 177 Eed. Philadelphia R„ McTCibbrn, Railroad Co. v. 259 Fed. & 476: Nashville & n O. St. R. Henry, Pw Co v. 164 S. W. Ky. Donagan Railway 88; 158 v. B. N. Y. Co., 165 & 869; Fed. Erie Railroad Russel, 722; Có. Fed. Ten- Drake, & nessee G. R. Co. v. Railroad Fed. Wil- let Illinois Central Railroad 142 N. W. 828, Minn. 513. *5 MISSOURI, SUPREME COURT OF Connecting By.
Jordan v. East St. Louis per damages is for LINDSAY, a suit C. This injuries plaintiff a verdict and sonal wherein the judgment employed in a switch- favor. He was engaged by in the man such was defendant, attempt coupling freight in to make a certain cars of plaintiff yards. defendant’s was conceded engaged in com defendant were at time interstate falling and the case one within the Federal merce, Beyond Employers’ Liability the action that, Act. grounded upon by alleged defendant of violation Safety (27 Appliance L. 32 Stat. Federal Act Stat. 943). L. petition charged by failure “that reason of the
The cou- with of the defendant to have cars said plers automatically by impact the ne- cessity it was men between the ends of necessary a in order to effect go of such between ends between the said cars said cars cars, and ends did attempt adjust and drawbars the said and did they of such so that while between couple, ends of the said between the ends and that while was the de- of the failure of reason work, cars about such Safety Appliance comply Act the Federal fendant to caught right particulars foot was in mentioned his charge negligence petition not and crushed.” The did of the car. or manner movement time general assump- plea denial, a The answer was a injuries plea whatever a “that risk, tion may any, his his the result of were sustained if have negligence this, that he used carelessness own attempting an- a while car to line foot in purpose of car for the other motion toward said coupled being thereto.” reply general denial. was a The he found was that statement coupled next which was car being open, it, not toward backed
in the. hue of cars op- open he undertook when did car. that ac- On erating on the outside the lever Connecting Jordan v. East St. Louis *6 necessary open lie count, his found it knuckle with and hand, did At noticed time, so. the same he had that the drawbar was out of line to an extent such apparatus coupling make at outer end would not its proper coupler when contact with the other ear, they together, came make auto- so as matically. It conceded, it and was manifest, must drawbar, its to the car, manner of attachment may liberty have a motion, certain so that plaintiff The accommodate itself to curves in the track. inches, said that of line. the drawbar about out six It from which, was admitted that was no device there into be moved outside of the the drawbar could car, alignment of line and and that out if the drawbar was required adjustment, man have to up. plaintiff appears tried to line first Failing in hand. to shove the into line his against placed corner, he his one that, hands, against and himself, of the brace ear, other the end push and foot, back with undertook to the drawbar engaged. injured he while so (1) assigned of the here are refusal The errors at the demurrer, offered defendant’s court sustain whole the close of ease and at close of the. plain- (2) giving numbered for instruction the refusal case; give (3) instruction’num- defendant’s tiff; testimony (4) defend- offered exclusion bered against “kicking regarding drawbars”, a rule ant first raises (5) The the verdict. excessiveness plaintiff right at under all, recover considered facts; and this the law and plaintiff inferences and all to the favorable the evidence reasonably therefrom. drawn to be testimony of the manner to the no I. There is No other himself. except that of occurrence eyewitness he did. what person extend thirty track cars on a about vccre ®iero Demurrer to Case. couplings were several ing south, north line. end of engine the north at The made. to be SUPREME COURT OF MISSOURI, Connecting Jordan v. E'ast St. Louis The southward on the east side of went observing necessary, whether where a open, opening the necessary, them knuckles of were when giving signals engineer occasion required. twenty-seventh The in the as went line, car coupled twenty-eighth car had been southward, on. car-length end of stood a or more distant from the south coupled, twenty-seventh had been after the latter car, approached it. As he did so, and at time twenty- he noticed that the knuckle of the eighth car about closed, and that the drawbar was six made inches out of line—toward the east. He sev- by using lever, eral efforts to the knuckle *7 opened failing open, with it in the to and knuckle went push back his undertook to the drawbar hands. He then being so, unable to do into line with his hands, against and tried the car, braced with his hands himself right push foot. with his or kick the drawbar back crushed. other came foot was on, The impact car his coupling. According testi- his did not cause a straight. money was the track where the two stood proceeds upon argument the demurrer The defendant’s operation opening theory the of that safety; accomplished that since been in knuckle had was align open undertook at the time open by of use of the knuckle the failure drawbar, injury; proximate that cause of not the lever was intervening independent of his cause immediate, kicking injury mere that the drawbar; the. act was his of standing as line—the cars out of fact the was Ap- Safety they pliance no violation were—constituted nothing upon to base which there is and that Act, except draw- liability mere fact that claim of a out of line. bar was Company City Parker, Railroad In Atlantic ‘‘ play be al must lateral Some c. said: l.
U. S. curve, aon the car was further, drawheads, lowed of out throw tend to course which finding that in were warranted But line. (cid:127) Connecting Jordan East St. Louis slight curve was so not re- as as affect the case and in garding purpose straight the track as for a line. upon straight automatically If failed to a may track; it at least said that a be would war- finding great play pre- ranted in that a lateral so vent in was not the absence of needed, that, any explanation failure believed indicated them, fully company complied that the railroad had not with ’’ [Citing cases]. the law. In the instant case switchman years’ experience play fourteen testified that the usual to either side about four drawbars, center, sharp no curves inches. He that there were testified where cars were. The defendant intro- close to these duced a play necessary testified the amount of lateral witness who that depends length rounding on curves greater play for a lateral needed that car; thirty-six longer play feet for a car car;. long ad- was an from to six there inches; four required for each additional inches ditional of two length defendant introduced the car. The five feet of long thirty-six car, feet small a ear length question. The car in not but did show nec- that it defendant testified same witness for line essary on a direct car to be each for the drawbar couple; knuckles if both the other order inches to six four be a variation there can are *8 depends only open it is one knuckle side; on the new if a worn; is other drawbar on much how open, only knuckle one and a new knuckle drawbar and and a inch or one in line one have to be then would a half inch and then little worn and if a inches, half concerning testimony wheth- no There inches. is three worn. Under knuckles were and drawbars er these necessary the ends sometimes is evidence effect up order to in drawbars line and of independent or unre- of coupling. is an act Such open- whether opening knuckle of the act lated ing may be by Both hand. lever or done thing be done. accomplish ultimate necessary to SUPREME COURT OF MISSOURI, Jordan, v. East St. Louis Under in for the record it was to find whether the the draw- question greater bar in than and needed, prevent coupling by impact, such as to and re quired adjustment. preparation “The of the impact and the are not but acts, isolated connected and indispensable by larger parts regulated of the which act, is performance
these and the statutes, which in unnecessary danger.” tended to1be relieved of risk and [Chicago Ry. M. & St. P. Co. v. 129 Fed. c. Voelker, l. 527.] upon
We have read the cases cited defendant this assignment. Among Ry. them are M. & C. St. P. v.Co. United States, 882; Fed. Davis Hand, 73; v. 290 Fed. Corporation, Smith v. Public Service Atl. Pitts burgh & R. R. Co. Cozatt, C. 79 N. 534; Glenn E. App. Met. St. 167 Mo. Some of them dis proximate cuss of what constituted in cause given but not case, facts similar to in those record. holdWe that there was no error committed overruling the demurrer. objection goes
II. The next to instruction num plaintiff, against bered one for directed the latter part of the instruction. This instruction, stating requirements purpose after Automatic Coupler. Appliance Safety Act and the effect provision Employers’ Liability Act concern ‘ ing contributory negligence, continues as follows* you you the court further instructs that if find be day April, lieve from the evidence that on the 22d at the time in the mentioned the cars evidence, mentioned the evidence were not with cou plers coupling automatically, by impact, the ne cessity plaintiff between the' of the ends reason if this in whole or in this, part your injured, caused to be verdict plaintiff.” should be for the
Chiefly support objection to this instruc- urged by theory tion it is counsel defendant that the *9 Ry. Connecting Jordan v. East Louis St. Co.
upon which the case whether the tried, was was lateral play of the not, that or excessive, plaintiff’s injury resulted the instruc- therefrom; that ignores permits plaintiff tion to recover this issue, they open by merely believe that the knuckle did not necessary means of the it lever, and was they gO'between ends it, of cars to which, say, completely accomplished. was an act That was the theory of The the defendant. instruction is not as defi- might ignores it said that it be, nite as but cannot be whether the of the drawbar the issue lateral single out issue. It or not. that excessive does submitted the whether cars were automatically by impact so as to make the plaintiff going between ends of obviate the finding enough to include of of the cars. It was broad misalignment necessity arising of draw- from the only solely, that as the but not restricted bar, cause. Safety Appliance purpose Act and effect of Ry. Co., Pacific v. discussed Johnson Southern
are Taylor, Ry. & v. S. Louis I. M. U. St. S. 196 U. Conarty, 238 U. F. Railroad & S. Louis 281; St. holding has been In effect the other cases. S. 243 and qualified purpose com to substitute duty duty all times to maintain at an absolute mon-law necessity men equipment obviate the which an uncoupling or going, the ends of cars them. Wag- & P. Antonio A. In the case San the fact involved there was 241 U. S. ner, engine at the time of out line drawhead injury. The issue made impact substantially made here. the issue pleadings pleaded the defendant The answer sufficient have engines, “must tenders permit curves,” run around trains motion “ automatic pleaded no kind there was further n which be constructed that can constructed previous automatically times all at will SUPREME COURT OP MISSOURI, *10 Connecting Ky. Jordan v. East St. Louis adjustment play necessary because the to en- coupled able cars to round curves.” The manner of the page is occurrence set at forth, 479: “At the trial the plaintiff engaged evidence tended to show that was in switching yards riding at one of defendant’s and was engine the footboard at the rear of the in order to coupling make a between it a car; and at box that the impact first use words—‘the —to coupled up against wouldn’t make; I them but it signaled engineer make.’ wouldn’t then He the to draw having adjusted ahead, and this been done, the pin upon gave engi- knuckle the and and ‘I car, box the back-up signal couple again got neer in and I back engine; got the on footboard of the when on I the foot- board I looked down I and seen the drawhead on the en-
gine away my shifted over side I reached and up my with left the foot shift drawhead it over so right slipped my and foot on the foot- wet caught board;’ a result as of which his left foot was be- (cid:127) tween the drawheads and crushed. He testified that at impact engine the first on the drawhead the in line only thing with that on the prevented car that box at time this the failure of pin drop.” on the box car The character of the instructions for page also shown at “The trial court 480': instructed the car that if the locomotive were not equipped coupling automatically im- with pact proxi-
the ends the cars reason as a injuries mate result of received his the ver- be in favor.” dict should pertinent of the court were conclusions here page “It insisted
stated at 483: that neither original precludes adjustment nor the amendment act coupler prior impact, or at time treats or alignment a defect in the automatic a drawbar out of as coupler, that the are statutory up couplers measuring standard. repair equipment in the automatic The evidence -of bad Jordan East St. Louis
was not confined to the fact that line; the drawbar on engine coupling-pin on out fact drop the box car failed at should have done impact, required manipulation preparation first impact, together for the fact that second with the' engine drawbar on the so far out of line as to re quire adjustment impact; preparation second opinion being and the evidence, to sustain sufficient finding equipment defective, misalignment reasonably draw- could find *11 greater required permit rounding bar than to adjusting have that an lever should curves, or, not, if upon provided upon engine been car, and that as engine. need not in this there was none We Chicago, in R. I. conceded determine, case what was L. 320, 1204, 229 57 Ed. Brown, 317, & P. R. Co. v. S.U. a to N. A. that the failure of 1205, 826, C. C. charge any been that the act work at time sustains a has ’’ violated. City Ry. 242 U. S. That case and Atlantic paragraph, preceding were mentioned to referred in Pennsylvania explanatory way in Railroad Co. in an page (C. A.). said at 527: Fed. C. Jones, 300 only holding 56, the 242 U. S. Parker, “In Co. v. Atlantic may statutory defect there is infer that is coupling required not did automatic play in the lateral much there was too occur because play is nec lateral fact that some drawheads, and permit not essary necessarily on a curve did in to order unnecessary |not an there was show1 in are closest cases These in these drawheads. amount holding.” any they definite point fall short but presented plaintiff’s numbered instruction equipment which would have of a failure issue necessity by impact, automatically, couple without do not the cars. We going ends between be- error reversible giving it constituted think solely, finding defect, of a restrict did not cause play the draw- lateral excessive to an due to a defect bar. SUPREME COURT OF MISSOURI,
Jordan v. Bast St. Louis III. assignment The next directed the refusal give of the court to for defendant offered instruc- its tion numbered 4, which is as follows: you
“The court instructs that the failure to have equipped question car in awith that could be plaintiff going lined for between the cars does in itself constitute a Excessive requiring violation of the law so Play of Drawbar. without the car said and the one to which it was coupled, you question to be but the sole in decide determining jury liability plaintiff’s defendant for in play whether the amount of lateral of the draw- question bar was excessive and constituted viola tion of said law for that reason, and connection you play are some instructed that to the draw- bar must be allowed and sufficient to enable the you car to around such curves find believe reasonably ordinarily existed on railroad lines and yards in switch at and before the time of in jury, though you find and believe that the draw- out bar of the car attempted of line when push over his foot and *12 go between the of the to do and that ends so injured you only Avas as a nevertheless can result, find you and for the find believe from the evi play dence that the lateral of the drawbar in beyond per excessive the need was missible and above described as injured solely by that was reason play such excessive lateral of the drawbar and Avould injured except have been for reason.” not such support In of their contention under this head, Ry. Parker, Atlantic Co. v. 242 counsel have cited U. Ry. Wagner, A. P. Antonio & Co. v. 59, S. and San already Avhich has been made. U. reference 476, S. Chesapeake They Ry. Arrington, & O. Co. v. further cite Ry. (Va.) Crowe v. Boston & 101 S. E. and M. Chesapeake (Mass.) In 189. N. E. O. & side-play engine Arrington, of the drawbar of an Ky. Connecting v. East Louis Jordan St. the ne-
was introduced as and evidence was involved, cessity side-play, the standard for and to what was accepted fol- offered use. In that case the defendant lowing instruction: side-play
“The court instructs accepted coupler general according and standard in to a coupler, in a use on not constitute a defect railroads does that in from the further believe unless couplers there in this case involved one or both of the couplers coupler greater side-play, or or that necessary for the safe than were more out of line, operation engine cars.” of the and Appeals Virginia held the refusal
“The Court doing criticized so, error, but, the instruction was language interpretation gave what its own and used, lan “The 101 E. c. 421: intended. l. said, was guage say aptly and instead it is chosen, true, is ing unless there was a defect it did not constitute side-play, greater or were opera necessary the safe for line than more out of ap engine more have been car, tion propriate bring necessary say about, ‘than given operated the auto properly trial, fair when impact engine by of the car and matic plaintiff’s going the ends in between ’ ’’ coupling. engine to effect the and car materially from the different is That instruction interpreted court. especially so one here, side-play to enable is “sufficient defined Here, you believe find and curves such as around the ear ordinarily on railroad lines reasonably existed side-play not more There, in switch 3mrds.” coupling. necessary bring automatic about than was ut- allowance for the full or makes here instruction founds defi- side-play its One needed curves. most coupling’;-the takes other needed what nition first curves. The only needed for what cognizance *13 any the existence part excluded instruction the by equipment the drawbar could which duty to have going coupling for be lined OF MISSOURI, SUPREME COURT Connecting Jordan v. East St. Louis question then told the that sole for them to determining' liability non-liability decide in or play whether the lateral tested what excessive, as doing was needed for a car In round curves. so any it excluded consideration evidence inference any appliance that therefrom, there about these cars functioning’ defective itself, or, defective at the time, any part coupling' equipment of the other than mis- alignment of this drawbar. may
The evidence has been but stated, be referred again. only The evidence far the drawbar how out line was that that himself, it was out six about inches. Counsel for defendant their argument here call attention the evidence “that if both couplers open, knuckles on were a drawbar out of couple automatically;” line six inches would still open “recall that both knuckles were before the place, already was to take inasmuch as had opened twenty-eighth one of the car with his hand.” This is considered with defendant’s evidence that play necessary rounding; normal for curves from thirty-six long; four to six inches, a car feet and that length given. According of this car is not evi- this might dence the actual not have the normal curves, exceeded nor that exceeded which prevent an automatic with both open, they responded properly impact, yet, impact, evidence is that the did not the and the evidence that knuckle of while one, open by use hands, had failed to by pulling do lever. We not construe demanding every except contingency be excluded play. one that failure due to excessive lateral We do'not should told have been that this think was the sole to be decided. assigned
IV. next error refusal peimit court to defendant rule show had been forbidding employees to kick PromiU8’ated Violation drawbars, and to show of Rule. *14 1924. 47 Louis Jordan v. East St. Upon
knowledge that, of the existence of that rule. N. M. & P. Railroad 197 Co., Schendel v. C. St. W. (Minn.) Payne, are cited. 211 Pac. 767, Kern v. 744, Joseph I. & G. But it Ry. held in Moore St. was otherwise v. Safety one under case, 268 31. In that Co., Mo. Appliance up for question a rule came Act, bidding employees un in motion to “to between ’’ Following to the circumstances them. reference page question said at the court arose, under which the appel any, respondent’s violation, 35: “Further, contributory rule at most but evidence of was lant’s. being founded negligence; upon and in action case, this Safety Appliance applicable Act, violations of the nor contributory negligence defense neither constitutes Liability Employers’ mitigation. [Second U. Cases, ruling.” In 50.] error l. c. There no Chicago Schendel defendant, the first case cited Ry. one issue was at M. & P. St. employee di to a foreman’s “exact obedience from ’’ held requiring It was execution. rect instant command, directly contrary employee command to such that if the appliance diso his wilful meddled with a defective injury. regarded cause of the sole bedience must be distinguished a command But the court standing general or orders issuance sort, Supreme being that of the latter the rule on rules, Northern stated Great Court States United assignment ruled must be This Otos, U. S. against defendant. excessive. that the verdict
V. contended of which $¡14,000; The for had a verdict court, order of $4,000 remitted allowed. judgment $10,000 Excessive Verdict. thirty-four years old, fourteen chiefly for about employed a switchman been injured about earning time he was years. at He was hospital about six per in the He month. $200 about injury. trial, time of theAt after his months injured, not been he had after months eleven SUPREME COURT OF MISSOURI, & Sullivan v. N. I. Railroad G-. earn, anything,
able to and conld walk no considerable except npon compound distance crntcbes. There was fracture of the first and second bones of the metacarpal right foot. Some came out. There was bones testimony that at the trial time of the he had a sore place top showing on the of his foot evidence of some diseased bone the arch. There was a difference of opinion support, any as to whether an arch shoe *15 any could be made that him enable con would walk using very extent, siderable that foot. clear1that It is permanently following disabled from former-calling. opportunity In consideration jury, trial court and the and of what been held has (Brickey appeal similar somewhat cases on v. St. M. B. T. Co., Louis Depot 480;W. Ernst v. Union 222) opinion T. B. & are S. W. we point also the action of the trial court should sustained. judgment follows should be affirmed.
Seddon, concurs. C., foregoing opinion
PER GURIAM: The of Lind- adopted opinion sat, 0., as the of the court. All except judges sitting. concurs, Atiaood, J., SAMANTHA SULLIVAN v. GIDEON & NORTH IS- Appellant.
LAND RAILROAD COMPANY, One, April 13, Division 1. APPELLATE PRACTICE: Demurrer to Plaintiff’s Case. In deter- mining whether the made a which case entitled jury, in an action at law to where a demurrer evidence was overruled the trial returned a court her, appellate gives verdict for court to her favor- the most testimony case; able of the most favorable the whole .view engineer if the defendant did not see fit to call as witnesses the and fireman the train which ran hus- over killed band, indulged testimony the inference will be their been have unfavorable defendant.