32 Mo. App. 413 | Mo. Ct. App. | 1888
— This was an action for damages on account of personal injuries alleged to have been caused by the defendant’s negligence.
The material portion of the petition is as follows: “That on or about the eleventh day of June, A. D.,
The petition clearly alleges that the defendant’s servants and agents carelessly, negligently, recklessly, and without any notice whatever, backed an engine and cars against the car plaintiff was loading. The averment of the petition as to the want of notice to plaintiff is perhaps slightly awkward, but the meaning of it is clearly as just stated by us. The criticism of this averment of the petition by defendant’s counsel is without merit in our opinion. “The general rule is, that to persons who are lawfully upon the track, engaged in labor, the railroad company owes a duty of active vigilance, and such persons have a right to become engrossed in their labor to such an extent that they may be oblivious to the approach of trains, relying, as they may, upon the duty imposed by law with reference to them. ” 1 Thomp. on Neg. 461. In applying this general rule to a particular case, it has been well said : “When a railroad company puts loaded cars upon a side-track for the purpose of being unloaded by the owners of the freight, and such owners, their agents, or servants, with the express or implied consent of the company, proceed to remove the freight, the company in such case has no right, without special notice and warning, to run or back a train in upon the side-track while the cars are being unloaded. And while in such case those engaged in the work of unloading are not permitted to close their eyes or ears to what comes within the range of those senses, yet they may give their undivided attention to their work, and are justified in assuming that the company will not molest them or render their position hazardous, without such notice or warning. That such is the law is well settled by authority.” Railroad v. Goebel, 1 West. Rep. [111.] 691. In giving and refusing instructions, the trial court acted in harmony with this general rule, and properly so.
The conductor in charge of defendant’s train charged with having caused the accident in controversy, testified for the defendant. He testified that it was his
The case was fairly tried. Judgment affirmed.