160 Mo. App. 69 | Mo. Ct. App. | 1911
Action by administrator of J. C. Johnson for damages for the death of Johnson. Judgment for plaintiff for $4000' and defendant has appealed.
Deceased was in the employ of defendant at Mo-nett, Missouri as “freight digger” and while attempting to pass between two freight ears was caught and billed by the cars being suddenly jammed together. Monett is a division point on defendant’s road and a large amount of freight is removed from cars there and reloaded for shipment to its destination. To facilitate this work three switch tracks are maintained each of which connects with the lead track that leads to the round-house where engines are kept. In a general way, these switch tracks run east and west and connect with the lead track on the east. These tracks are numbered 1, 2 and 3, counting from' the north. North of track 1 is the office. Between tracks 1 and 2 is a covered platform, 640 feet long the floor of which is on a lével with the floor of the cars. Johnson worked at night and his duties were to go inside the cars and dig out or separate the freight therein and pass it out to the truckers on the platform who would truck it to the proper car for reloading. His time to quit work was usually 1 a. m. but if the work was not done at that time he was required to stay until it was finished. When the freight was all reloaded, the cars were then sealed and this was the last act of the workmen before the cars were turned over to the switch crew to be placed in the proper train. On the night of Johnson’s death there were several cars on track 1, three of which extended east of the office. Johnson was apparently the last man that left the platform that night. He sealed a car on track 2 and evidently started across to the office, and in doing so, attempted to pass between two cars on'track 1 by stepping on the dead woods of the cars, which were beams on the ends of the cars on a level with the floor of the platform. One of the two cars between which he attempted to
The first contention of appellant is that the demurrer to the testimony should have been sustained upon the ground that it affirmatively appears that deceased was guilty of contributory negligence. This contention is based upon two grounds. First, that it was negligence per se for deceased to attempt to pass between the two cars under the circumstances of this case. As viewed from defendant’s standpoint, the one car being out of repair, thus making it sure that in case the engine would strike the cars on that track while he was pássing through between them, they would likely be jammed so close together that he would be caught, and that Johnson did not know and could not know that the engine was not likely to come against the cars at any time shows him to have been guilty of negligence as a matter of law in attempting to pass between the cars at that time and cites us to the following cases to sustain this contention. [Hudson v. Railroad, 101 Mo. 13, 14 S. W. 15; Hudson v. Railroad, 123 Mo. 445, 27 S. W. 717; Corcoran v. Railroad, 105 Mo. 397, 16 S. W. 411; Bean v. Employers Liability Assurance Co., 50 Mo. App. 459 and numerous cases from other States.] All the cases cited from this State were cases in which the railroad had stopped cars on a public crossing and the party was injured while attempting to go between the cars or to ‘climb over between them. In none of these cases is it held to be negligence per se to attempt to cross between the cars alone, but coupled with the act of crossing is the further fact that the attempt was made without looking to see whether or not the engine was attached and the further fact that as the company was obstructing the street with the cars the parties should have expected the cars to be moved by the company as it was its duty
The other instructions are assailed as erroneous. The action is based on the penalty statute Sec. 5425, Stat. 1900 and. the jury were instructed that if they found for plaintiff to'assess the damages at -not less than $2000 nor more than $10,000 as provided in that section. In another instruction submitting the question of negligence of defendant three acts of negligence were submitted as follows:
“First: The failure to ring the bell or sound the whistle of the locomotive or give other sufficient warn
“Second: The running of said switch engine in upon track number 1 before the foreman of the switch crew had secured the switch list and.had determined which track was to be or should be first pulled. ’ ’
“Third: The failure to keep proper signal lights by night so placed and displayed at or near the switches so as to prevent the switch engine from being run in against the cars on track l over and between which said Johnson was then passing.”
The first act of negligence submitted is conceded to be unobjectionable. The second, that. of running the engine in on track 1 before the foreman of the switch crew had received the switch list and determined which track Was to be first pulled is attacked on the ground that it is not warranted by the testimony. It is contended by appellant that there was no custom in vogue as to that matter but that the engine was likely to come in at any time and especially after 1 a. m. when the work was expected to be done and the cars ready and that the engine did often come in before the switch list was delivered. Some of the testimony supported that view but there was testimony to the contrary. J-. L. Hobbs, the foreman in charge of the work and whose duty it was to deliver the switch list to the-switch foreman, testified in part as follows:
“Q. When would you turn this switch list over to them? A. I usually turned the switch list over- to them after the freight was all loaded and I was through with the list myself. -
“Q. Would that switch list inform the foreman of anything? A. .No, sir; only that our work was completed and we were closing the house. As soon as the men were through with their work he would be notified and would hook on to them.
“Q. State if you know what knowledge, if any, Mr. Johnson had and your men had with reference to your custom of handling the switch list? A. My custom of handling thé switch list?
“Q. Yes, sir. A. They were all familiar with that, I think. I had warned them time and again that they would he notified and that the switch engine wouldn’t be.allowed to come against the cars until they'were given permission.
“Q. When would you give permission? A. When the men were through their work. When the cars were all closed and sealed.”
This testimony alone tends to show that the men in charge of the engine had no right to come in on the switch track until the switch foreman had received the switch' list and then directed them where to come in and that this was not done until the switch list was delivered to the switch foreman and that the switch list was not delivered until the work was completed and the ears sealed. That Johnson and the other' workmen were familiar with the custom. If this were true then the workmen understood that until the work was completed, the switch list made out and delivered to the switch foreman and his order conveyed to the engineer, the engine would not come against any of the cars and there would be no danger in passing across between them. Johnson knew when he sealed the last car that he would have ample time to cross, before the engine, if it followed the usual custom as above described, could get to the cars on track 1 and it was negligence for the engineer to come in and butt against those cars at the time he did. This contention must be ruled against appellant
After a careful examination of this record our conclusion is that the case was well tried. The evidence supports the finding and the judgment will therefore be affirmed.