Phippin v. Missouri Pacific Railway Co.

93 S.W. 410, 196 Mo. 321, 1906 Mo. LEXIS 211
CourtSupreme Court of Missouri
DecidedMay 22, 1906
StatusPublished
Cited by31 cases

This text of 93 S.W. 410 (Phippin v. Missouri Pacific Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phippin v. Missouri Pacific Railway Co., 93 S.W. 410, 196 Mo. 321, 1906 Mo. LEXIS 211 (Mo. 1906).

Opinions

GANTT, J.

On the 22nd day of March, 1902, the plaintiff commenced this action for damages in the circuit court of Jackson county, Missouri.

After alleging that the defendant was a railroad corporation duly organized under the laws of this State, his petition proceeds to aver: “That on the 15th day of September, 1901, and for several months prior thereto, plaintiff was, and had been, in the defendant’s employ as a switchman in its railroad yards situated in what is known as the west bottoms of Kansas City, Jackson county, Missouri; that plaintiff’s duties were to couple and uncouple cars, switch them about and make them up into trains, and to obey orders and directions of his yard-master and foreman, who were superior in grade and authority to plaintiff; that it became and was the duty of the defendant at such time and place, to use ordinary care to provide plaintiff a reason[327]*327ably safe place in which to work, to use ordinary care to avoid injuring plaintiff while performing his duties, and that it was also defendant’s duty, acting through plaintiff’s superiors as aforesaid, to take proper1 precaution to prevent injury to plaintiff; that at or about the hour of 8:30 o ’clock p. m., of the 15th of -September, 1901, and in the darkness of the night, plaintiff was working with a switch crew, whose foreman was one G. W. Zibble, and said crew was operating defendant’s engine No. 310, which was in charge of one F. F. "Wood, an engineer; that said defendant at such time and place provided a switchtender, one Edward Gibbony, whose duty it was, under the supervision of said yard-master and foreman, to throw the switches in said yards and see that the same were properly set; that at said time and place there were certain stationary cars standing on what is and was known as track No. 18, which was and is located at a point in said yards where Liberty street and Union avenue, both public streets of Kansas City, would intersect, if prolonged; and that said stationary cars stood about forty or forty-five feet west of the point at which was located a certain ground switch and at the point of said switch both said track No. 18, and also a certain track known as track No. 17, ran into a certain main track; that at said time and place it became and was the duty of plaintiff to couple said stationary cars on to certain other cars at the time being moved backwards attached to the switch engine aforesaid, and plaintiff was standing with his right hand upon the rod of the first of said stationary cars in readiness to make the coupling at the place and in the manner required by his duty, and under the custom and rules of the defendant; that the point at which stationary cars were standing was in close proximity to said track No. 17, so that cars running upon said track No. 17, in a westerly direction, [328]*328would necessarily come in contact with the corner of the car at which plaintiff was standing; that when said cars were- backed from said main track on to track No. 17, instead of track No. 18, and on account of being backed upon said track No. 17 instead of said track No. 18, the coupling did not meet, but the corners of the cars at which plaintiff was so standing, engrossed in his work as aforesaid, were brought into violent contact with each other and his body was thus caught between said ears, and his right hand, arm and wrist caught between - the corners of said cars and mashed and crushed so that his entire hand, save and except a fragment of the thumb, had necessarily to be amputated; that said injury was occasioned to plaintiff by the negligence, carelessness and want of ordinary care on the part of the defendant, its agents, servants and employees in the following respects, to-wit: That said defendant by and through its agent, servant and employee, said Gribbony, negligently, carelessly and unskillfully threw said switch, permitting the moving cars to run in upon track No. 17 instead of track No. 18.” Other charges of negligence are contained in the petition but all of them except the foregoing were disregarded on the trial of the case and the case was submitted to the jury solely on the question of the negligence of the switchtender, Gribbony, in throwing the switch for track No. 17 instead of track No. 18. The petition further alleged that the said injury to plaintiff has- caused him the most intense pain and suffering, both mental and physical, ever since its occurrence, and will for sometime in the future continue to do so; that at the time of his injury plaintiff was a strong, able-bodied man and was able to earn, as a railroad switchman, ninety dollars per month, but that his earning capacity by said injury has been entirely destroyed; that plaintiff has been permanently deformed and rendered a cripple thereby, and has been deprived of all ability to earn his own livelihood, all to his great damage in the sum of [329]*329fifteen thousand dollars, for which he prays judgment and costs.

The answer admitted the incorporation of the defendant, and that on or about September 15, 1901, an accident occurred wherein plaintiff was injured, but denied that he received injuries of the character and to the extent in said petition set forth, and denied that plaintiff’s injuries were caused by any negligence or carelessness on the part of the defendant, its servants, agents and employees, and denied each and every other allegation in said petition not expressly admitted to be true. There was also a plea of contributory negligence. Plaintiff filed a reply, which was a general denial of all new matter alleged in the answer.

The cause was tried on the 23rd of June. 1902, and resulted in a verdict for the plaintiff for twelve thousand dollars and costs. In due time the defendant filed its motion for new trial and in arrest of judgment which were heard and overruled, and the defendant excepted and thereupon appealed to this court.

On the part of the plaintiff the evidence tended to prove that the plaintiff was a night switchman of the defendant in its yards at Kansas City, at the time he received the injury complained of. The night yardmaster was Joseph Maroney, and the crew of which plaintiff was a member consisted of Emmet Green, the foreman, George Zibble and C. Mills, switchmen, Wood, engineer, Burnett, fireman, and a switchtender named Gibbony, and the plaintiff. At the time of the accident, Green had gone to lodge, and Zibble had been appointed foreman in his place by Maroney the yard-master, Mills was over at the Union Pacific yards some distance away, Wood and Burnett were on the engine, and so far as the record shows, knew nothing of the facts causing plaintiff’s injury. Gibbony was dead at the time of the trial.

The plaintiff testified that the point at which the accident occurred was about 45 feet from the ground [330]*330switch connecting the two tracks, No. 17 and 18. Plaintiff testified that the photograph marked £"Exhibit A,” attached to plaintiff’s additional abstract of the record, correctly represented the directions and the yard at the place where he was injured; that the photograph marked ££ Exhibit B ’ ’ represents the same place looking in an opposite direction towards Hickory street and [333]*333Union avenue; that “Exhibit 0” correctly represents the tracks 17 and 18 and the ground switch and point of accident. These exhibits and photographs will accompany this opinion.

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Bluebook (online)
93 S.W. 410, 196 Mo. 321, 1906 Mo. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phippin-v-missouri-pacific-railway-co-mo-1906.