Liston v. St. Louis, Iron Mountain & Southern Railway Co., 149 Mo. App. 231

Liston v. St. Louis, Iron Mountain & Southern Railway Co.

149 Mo. App. 231 | Mo. Ct. App. | 1910

COX, J.

The contention that a demurrer to the testimony should have been sustained is based upon two propositions: First; that the negligence charged in the petition is not proven. Second; that the evidence shows that deceased had a lantern and that he ought to have discovered the danger and avoided being struck. The negligence charged in the petition directly applicable to this defendant against which judgment was obtained is that the defendant had ordered the deceased to work at a place in which it was unsafe to work in the nighttime without notifying the deceased of the dangers to which he would be exposed. As bearing directly upon this question the evidence shows that the crew of which *239deceased was a member were directed by tbe nigbt yardmaster of defendant to take np a certain car and this car was found to be located at the southeast corner of the boiler house of the National Ammonia Company; that the track over which they were compelled to pass in order to reach this car was so close, to a portion of this building that the cars would pass within six or eight inches of the building; that upon entering the yards there was a tank located so close to the track that the cars sometimes brushed this tank in passing, and that deceased was ordered by his foreman to watch the cars in passing the tank to see that they did not come in contact with it. Immediately after the cars had passed the tank, deceased was seen to pass around the tank to the south side, but was not seen any more until he was found dead. The other switchman, McDaniel, after the cars had passed the tank, signalled for the train to stop which it did. He then climbed up on the top of the second car from the engine where he could see signals from Hiam who had passed down the track ahead of the train, and pass signals from him to the engineer. After getting on top of the train, McDaniel signalled the engineer to go ahead which he did. The train then proceeded without further stop until it bumped against the car. It failed to couple the first time, and the second effort was made before the car was coupled. What the deceased was doing while all this was transpiring no one directly knows, but when we recall that he passed around the tank to the south, that the train stopped after the cars had passed the tank, we can see that he then had time to pass around and to locate himself upon the steps or ladder provided for the brakeman to climb to the top of the car. When found his lantern was on his arm. This would indicate that he had been riding upon these steps holding on with his hands, and for that reason, the lantern was upon his arm. While there is no direct evidence of this fact, the fact that the lantern was upon his arm would indicate it. *240That the track was located so close to the building of the National Ammonia Company as to make it dangerous for men to work between it and the railroad track while cars would be in motion is clear. The defendant must have known the facts relating to that situation. The order of the night yardmaster to this crew to find and bring out that car was a direction to the entire crew to go wherever duty might call them in the effort to locate, couple on to and pull out that car. The evidence shows that deceased’s duty called him to the end of this train farthest from the engine. This would place him at or near where the car was being coupled, and the fact that his foreman, Hiam, had preceded the train, and he, as a matter of fact, coupled the car, would not release Liston from his duty, in the absence of an order to the contrary, to assume his regular place as soon as the cars had passed the tank.

It is contended that the order for him to watch the cars to see that they did not come in contact with the tank was a direction to him to stay there, but with this we do not agree. This order only required him to stay at the tank until the cars had passed it, and as soon as they had passed it was his duty to assume again his regular place in the work that was then in hand. Naturally he would seek to assist in coupling the car and in the absence of evidence to the contrary, we have the right to assume that he was in the regular performance of his duty, and that he undertook to reach the rear of the train in order that he might assist in the coupling. With these facts before us we are clear that there was sufficient evidence to warrant the jury in finding that deceased was in the line of his duty at the time of his death, and that the defendant was negligent in ordering this crew, of which deceased was a member, to couple on to and take out that car in the nighttime.

The next contention as to why a demurrer to the testimony should have been sustained is based upon the fact that deceased was provided with a lahtqPh* and that *241by the use of the lantern he ought to have discovered the dangerous situation and avoided the injury, upon this question the evidence discloses no fact except the bare fact that he was provided with a lantern. There is nothing to’ indicate that he was familiar with the situation; that he knew that this building was so close to the track that parties could not pass between it and the train, and, as indicated before, the fact that the lantern was found upon his arm, is some evidence tending to show that he was riding on the steps or ladder of the car, and if that were true, and the lantern happened to be on the arm farthest from the building, he might not have seen the building, and might, while in that position, have been struck by the building, knocked down and then received the injury. Whether the injury occurred in this way or not we are not prepared to say, but the mere fact that deceased had a lantern was not sufficient to show that in this case he was guilty of contributory negligence.

The next error assigned was the giving of instruction number one on the part of plaintiff. Without repeating this instruction it is sufficient to say that it submitted to the jury the question of defendant’s negligence in ordering the deceased to do the work of coupling this car in the place it was, in the nighttime, and the objection urged against it is that it allows the jury to find that plaintiff’s husband was engaged in the work of aiding in the coupling of a car at the time of the accident when there was no evidence whatever that he was so engaged. The answer to this contention is that the evidence does show that deceased’s duty called him to the rear of the train where the car was to be coupled, and the fact that he was found dead near the place where the ear was being coupled shows that he had attempted to go to where the car was being coupled, and, in doing so, he was clearly within the line of his duty.

The second objection to this instruction is that it *242submitted to the jury the question of the order having been given to deceased to assist in coupling the car. Contention is made that if this refers to the general order given by the night yardmaster, then the evidence fails to show that this order was the cause of the injury. We do not think the instruction open to this objection. When the order, was given to find that car and take it out the order was tantamount to a direct command to go to any place where the car might be located and bad the same effect as if the yardmaster bad known at the time be gave the order where the car was located and specifically directed these men to take their train to that very place and couple on to this car. Our conclusion is that there was no error in this instruction.

It is next contended that the court erred in refusing instruction number eight asked on the part of defendant. This instruction was as follows:

“The court instructs the jury that if you cannot find from the evidence in this case bow the plaintiff’s husband met with his death, then your verdict must be for the defendant.”

The court clearly was right in refusing this instruction. In this case the evidence tends to show that the deceased was in the line of bis duty at the time be was killed. It also shows the conditions to have been such, as we have already stated, which would have warranted the jury in finding that it was negligence on the part of defendant to have sent deceased to that place to work in the nighttime. This being true, the law will presume that deceased was in the exercise of ordinary care. [Buesching v. The Gas Co., 73 Mo. 219, 233; Eckbard v. Transit Co., 190 Mo. 593, 613, 89 S. W. 602; Powers v. Transit Co., 202 Mo. 267, 280,100 S. W. 655.] Giving the plaintiff the benefit of this presumption, the jury, under the facts in this case, were warranted in finding that the deceased came to bis death by reason of the negligence of defendant.

*243The defense of contributory negligence is an affirmative one and the burden is always upon defendant to establish it, and when there is evidence tending to show that the injury was caused by the negligence of defendant that is all the plaintiff is required to prove. The burden is then cast upon the defendant to show that it occurred without any negligence upon its part, or if it asserts the injury was caused by the negligence of the injured party it must offer proof of that fact. This being true, and applying this rule to the facts in this case, our conclusion is that the plaintiff was not required to go further than it did to explain the circumstances of the injury, but if the defendant would excuse itself for having ordered the deceased to work in the dangerous situation in which it placed him, the burden was upon it and not upon plaintiff to explain how deceased came to his death.

The judgment is for the right party and will be affirmed.

All concur.