190 Mo. 424 | Mo. | 1905
This is an action for $20,000 damages for personal injuries, received by the plaintiff on the 24th of February, 1899, while in the employ of the defendant as switchman in its railroad yards at Kansas City, Missouri, in consequence of an attempt to chase and couple a car loaded with live stock to an engine, in order to prevent said car from colliding with other cars on the track.
The plaintiff recovered a judgment of $7,150, and after proper steps the defendant appealed.
THE ISSUES.
The petition alleges that the defendant is a domestic railroad corporation; that on the 24th of February, 1899, the plaintiff was in the employ of the defendant as a switchman in its railroad yards at Kansas City, Missouri; that it was plaintiff’s duty to couple and uncouple cars, switch them about and make them into trains, and to obey the orders and instructions of his foreman; that it was the duty of the defendant to furnish to plaintiff a reasonably safe place and reasonably safe appliances for doing his work, as also to take proper precautions to prevent injury to plaintiff; that about half past ten o ’clock, at night, the plaintiff was working with a switching crew of which Thomas Pearch was the foreman and William McKay, the engineer; that the coupling appliance on the engine was an old-fashioned and antiquated form of coupler, known as the common linlc-and-pin coupler, and a Jenney coupler on the stock car; that the operation of coupling link-and-pin couplers with automatic couplers is dangerous when
The petition then assigns the negligence complained of in the following language: “that said injury was occasioned to plaintiff by the negligence, carelessness and want of ordinary prudence on the part of de
The trial court instructed the jury to disregard the first and’third acts of negligence complained of, and the plaintiff acquiesced in the ruling; so that.the case was submitted to the jury on the alleged negligence of the foreman to warn plaintiff of his danger, and of said foreman’s failure to signal plaintiff or the engineer to stop in time to avoid the accident.
The answer admits the incorporation of the defendant and that the plaintiff was a switchman in its employ, and then pleads assumption of risks and contributory negligence. The reply is a general denial.
The case made is this:
The defendant is a domestic railroad corporation and has a switch yard in Kansas City, Missouri. It used two switching crews in said yards, which acted independently of each other, but under the direction of the yardmaster. Plaintiff was a member of one of said crews and was a switchman. The crew consisted of Pearch, the foreman; Spencer, another switchman; McKay, the engineer; and the plaintiff, and presumably a fireman, though that fact does not distinctly appear. Spencer was called “the switchman in the field;” that is, the switchman whose duty it was to do certain switching; the plaintiff was called “the switchman that follows the engine';” that is, it was his 'duty to stay with the engine for the purpose of coupling and uncoupling it to and from other cars.
For the purposes of this case the following is a sufficient description of the switching yards: There was
The plaintiff and his crew were engaged in making up a freight train, and for this purpose, about an hour and a half before the accident, they had placed some ears on short four. They then went to some other place. While they were gone, the other switching crew placed some more ears on short four, but left the most. southerly car so close to short three that a. train could not pass the same on short three without colliding therewith, or as it is termed in railroad parlance, “cornering” with them. Neither the plaintiff nor the foreman nor any member of his crew knew that the other crew had so placed said cars. The night was dark and rainy. About half-past ten o’clock the plaintiff’s crew returned to the scene of the accident. The engine was run onto short five, and there attached to a stock car loaded with live stock'. Their purpose was to move the stock car from short five and place it on short three. In order to do so, it was necessary for the engine, which was facing southwardly — the engineer, therefore, being on the right-hand side of the engine — to pull the stock car southwardly on short five down onto the lead track, beyond the most southerly switch, and then to close the switch from the lead track to short five, and open the switch from the lead track to short three, and so run the car onto short three. There is a sharp and irreconcilable conflict in the testimony as to the exact order that was given by the foreman to accomplish this purpose. The plaintiff and the engineer testified that the
The uncontradicted evidence shows that when the plaintiff thus took the stock car from short five, the foreman and the other switchman were standing at that point, which was two hundred and eighty-two feet north of the switch between the lead track and short three. While the plaintiff and the engineer were thus engaged in taking the stock car down .onto the lead track, the foreman and the other switchman walked southwardly until they reached the end of the cars that were stationed on short four. They stopped there, leaning against the most southerly end of the train, talking. The foreman and the other switchman testified that they then saw, for the first time, that the stock car and engine could not be run up onto short three without cornering on the cars that stood on short four. They both saw that the engine with the stock car were coming northwardly
The stock car was traveling from two to three miles an hour, and of course the engine had to travel at a greater speed in order to overtake the stock car to enable the plaintiff to couple onto it, and the engineer had to keep the engine well under control so as to stop the car and engine as soon as the coupling was made and before the collision occurred.
When the engine was within about two feet of the stock car, and before it had overtaken it, and while the plaintiff was standing on the foot board with the link in one hand and th© pin in the other, the stock car collided with the stationary ears on short four, the stock car rebounded in consequence of the collision, and the plaintiff’s right hand was caught between the couplers and mashed so that the greater part thereof had to be amputated.
There is a sharp cqnflict in the evidence as to whose duty it was to throw the switch at short three. The plaintiff’s testimony tends to prove that it was the plaintiff’s duty to remain with the engine and to throw only the switch nearest to the engine, and that it was the duty of the foreman or the other switchman in the field to throw all other switches necessary to accomplish the purpose in view, including the switch for short three. On the other hand, the defendant’s testimony tends to prove that it was the duty of the plaintiff to throw all of the switches necessary to accomplish the purpose intended. The defendant further contends that the plaintiff could have seen before he gave the order to the engineer to kick the stock car that th© switch to short three had not been thrown; and, further, that by the exercise of ordinary care the plaintiff could have seen the condition of the stationary cars on short four, which rendered it impossible to move or kick the stock car
At the close of the plaintiff’s case, and again at the
I.
The first question presented for adjudication is whether or not the trial court erred in refusing to take the case from the jury.
The negligence charged and upon which the case was tried and submitted to the jury was that the foreman failed to warn the plaintiff of his danger, and to signal to the engineer to stop until too late to prevent the collision and accident.
The case made by the plaintiff was an order to take the stock car from short five and kick it onto short three, which meant that he was to take it off of short five, haul it to the lead track, and then kick it onto short three; that in the performance of this order it was the plaintiff’s duty, when he had passed the switch from the lead track to short five, to get off of the engine and throw the switch, so that the train could then go north on the lead track and thence onto short three; that it was the duty of the foreman or the switchman in the field, to throw the switch from the lead track to short three; that the plaintiff knew that cars had been placed on short four, but that they had been so placed an hour and a half before the accident as not to interfere with the kicking of the stock car onto short three, and that he was ignorant of the fact, and under the circum
Upon such a showing it cannot be said as a matter of law that the plaintiff was guilty of any negligence in the premises, nor can it be said that the case made did not entitle the plaintiff to go to the jury.
The sum of the position taken by the defendant as to the ease made by the plaintiff is, that he saw, or could have seen, that the additional ears placed on short four, cornered on short three and made it impossible for him to carry out the order to transfer the stock car from short five to short three, and necessitated the shoving of the cars on short four to a point further north before attempting to kick or push the stock car onto short three, and the basis of the contention is that in taking the stock car from short five, the plaintiff passed within eight or ten feet of the cars standing at the south end of short four, and saw, or by the exercise of ordinary care, could have seen them in that position.
Under this contention it becomes immaterial whose duty it was to throw the switch to short three, for if it was the duty of the plaintiff to first shove the cars on short four further north before attempting to place the stock car on short three, then it would have been improper to throw the switch to short three, and if it had been done, it would have been impossible to shove the cars further north on short four. The case made by the plaintiff, however, is, that he did not know that additional cars had been placed on short four; that he did not see them so placed thereon in moving the stock car off of short five, and that the night was dark and rainy, and that the position of the cars on short four,
There is no room for doubt that the foreman had ample time after he discovered that the cars on short four cornered on short three, and thereby prevented the carrying out of his original order, to have given a signal or order to the plaintiff and the engineer, changing the original order and directing them to come north on short four and push the cars further north on that track before attempting to carry out the original order. There can he no difference between fair-minded men that when the foreman discovered this change in the state of affairs, it was his duty to change his original order and to give the proper order. Instead of so doing he assumed, when he saw the car and the engine coming north on short four, that the plaintiff and the engineer were coming for that purpose. But under the circumstances of the case he had no right to so assume, because such an assumption was based on the further assumption that plaintiff and the engineer had seen this changed status
It would have been manifest error for the trial court to have taken the case from the jury upon the plaintiff’s showing under such circumstances. It would also have been error for the trial court to have taken the case from the jury at the close of the whole case. For, though the defendant’s evidence tended to show that it was the plaintiff’s duty to throw the switch to short three, which concededly should not have been done under the circumstances, because it would-have resulted in a collision between the stock car and the cars standing on short four, and though the defendant’s evidence also-tended to show that the proper procedure would have been for the plaintiff to have climbed onto the top of the stock car and apply the brakes and thus stop it, nevertheless, the court could not for this reason take the case from the jury, because it was the province of the jury to decide these questions upon all the evidence submitted in the case, and there was a sharp and irreconcilable conflict between the duty of the plaintiff as defined by the plaintiff’s evidence and that duty as defined
These questions, together with the question of contributory negligence of the plaintiff, if there was any such, were questions for the jury and not for the court. The jury found the issues for the plaintiff and thereby the facts are established in this case to be as the plaintiff contended and not as the defendant contended.
There was no error, therefore, in the ruling of the court in submitting the case to the jury.
II.
It is next contended that the plaintiff was guilty of contributory negligence.
This question has been necessarily discussed in the consideration of the question of the submission of the case to the jury. If the .plaintiff’s theory and testimony and that of his witnesses is true, then there is no room for a court to declare as a matter of law that the plaintiff was guilty of contributory negligence. On the other hand, if the defendant’s theory and the testimony of his witnesses is true, then the plaintiff was clearly guilty of contributory negligence. But as there was such a radical difference between the testimony of the plaintiff and that of the defendant upon this question, it becomes a question of fact for the jury and not a question of law for the court. Under no view of the case could it be claimed that the plaintiff was guilty of contributory negligence, except upon thetheory that the plaintiff was charged with notice of the condition of the car on short four by reason of the fact that in moving
III.
The evidence is conflicting as to the duties of the plaintiff and the foreman under the facts proved in this case, but there is no conflict in the evidence that, whether the original order was to kick the car onto short three or to keep it attached to the engine and shove it to short three, the foreman discovered that the original order could not he carried out, because of the cornering of the cars on short four with short-three, and had ample time to have countermanded the original order and to have ordered the plaintiff and the engineer to come north on short four and shove the cars standing thereon further north before attempting to.place the stock car on short three, and that he wholly failed in his duty in this regard, and that his failure and negligence in this respect was the direct and proximate cause of the injury. The only attempt of the foreman to excuse himself for so failing in duty is that he assumed that the plaintiff and the engineer had discovered the change in the condition or status of affairs after they had started with the stock car south on short five. As hereinbefore pointed out, such an assumption was unwarranted in this case. It is noteworthy that when the switching crew returned to the place and removed the stock car from short five, they had to pass northwardly on short five in order to reach the stock ear, and that in so doing they passed as near to the cars stationed on short four as the plaintiff did in removing the stock car from short five. Yet it is conceded that at the time the order was given to remove the stock car from short five, none of them knew that the car .on short four was so placed as to prevent a car from being shoved up or kicked up onto short three. The foreman, himself, testified that
Under such circumstances the ends of justice are fully met by stating that such is the result of the evidence without specifying it. Neither will it be profitable to set out and discuss in detail the various instructions given and refused in the case. On behalf of the
Under the testimony adduced by the plaintiff, particularly as to the practice and custom that prevailed in the defendant’s yards of chasing cars and coupling to them while in motion, it may fairly be said that in entering, or remaining in, the defendant’s service, the plaintiff assumed the risks ordinarily incident to so chasing and coupling cars. But the plaintiff did not assume the risk of the negligence of the defendant, or his alter ego, in not countermanding the original order and in not signaling to the plaintiff and engineer after he discovered that it was impossible to execute the original order, by reason of the cars on short four cornering on short three. Under the case made by the plaintiff this was a fact that was known to the foreman and unknown to the plaintiff, and the' foreman had ample time to have so acted as to have prevented the injury. His failure so to do was negligence, and the plaintiff did not assume the risk of his negligence, when he entered the service of the defendant or when he attempted to make the coupling in the manner in which his evidence showed it was constantly being made or attempted to be made in the defendant’s yards.
This general discussion of the case and the legal principles applicable thereto disposes of all the conten
Finding no reversible error in the record, the judgment of the circuit court is affirmed.