132 Mo. App. 687 | Mo. Ct. App. | 1908
This is an action by plaintiff to recover damages for personal injuries alleged to have been received through the negligence of the defendant on the 31st day of March, 1905, at Kansas City, Missouri. The plaintiff received his injuries in defend
The plaintiff 'was in the employ of the Pullman Car Company as foreman of a small crew of men, whose business it was to clean, repair, and get the Pullman sleeping cars ready for their next trip, and it was also the duty of plaintiff to see that there were no outside causes likely to injure the Pullman cars. He had been employed as such foreman for about one year, but had been in the employ of the Pullman Car Company in and about its cars in said yards for more than a dozen years previously.
A short time prior to the accident, which occurred at about eleven o’clock a. m., the plaintiff started from the west end of the railroad yards to go to the east end of the coach track, at which time he noticed two cabooses standing on the said coach track near to Santa Fe street. He remained there a short time and then turned to go back east, and while he was passing he noticed a telegraph wire lying on and slacked directly across the top of a Pullman car. From his position at the side of the car he was unable to see to what point the wire extended and whether it would be necessary for him to have it removed to avoid injury to the car, and in order to trace the direction of the wire, he walked along the side of the track to a point about twenty feet west of the west end of the car. At this point he looked west, and discovered the two cabooses
Mr. Clifford, who attracted the attention of the engineer as stated, first saw plaintiff on the track about thirty feet west of the elevated road at which time the caboose was about the same distance west of plaintiff. Clifford tried to attract plaintiff’s attention by whistling and hallowing at him, but did not succeed in doing so, but plaintiff turned and was proceeding to start across the track without looking toward the caboose. It was also shown that it was not usual to place cabooses on the coach track until in the afternoon, but that sometimes they were placed there in the forenoon.
The vital question in the case is, was plaintiff entitled, to recover under the testimony.
The position of the plaintiff is that: “The defendant’s engineer was guilty of negligence in suddenly backing the cabooses which had been standing still for twenty minutes or more on the track, without having given any warning or signal of his intention to thus
The appellant contends, however, that the principle has no application to this case, as it relates to instances of persons loading or unloading cars at the invitation of the company or who were so placed that they were unable to look out for their own safety. As plaintiff was not in the employ of defendant, but was merely permitted to go onto the defendant’s railroad yards for his own convenience and that of his company, it is argued that he was at most only a licensee, and that as such defendant owed him no duty except not to wilfully or wantonly injure him. It is held that “A railroad company owes no other or greater duty to a naked licensee, exercising the privileges of such in walking on a pathway along the side of the track, than not to negligently or Avantonly injure him.” The pathway mentioned was generally used by the people in going to church. [Carr v. Railway, 195 Mo. 214.] “One, who enters into a caboose which carries passengers, for the purpose of bearing a lunch to the trainmen, with no intention of becoming a passenger, there being no contract expressed or implied to that effect, and no recognition of him as such, but under a general arrangement betAveen his mother and the conductors to supply them with lunches, with which the company had nothing to do, and under a general direction from the conductor of the particular train to take the lunch into the caboose, is a mere licensee, to whom the railroad owes no other duty than not to negligently or wantonly injure him, since his business was Avith the trainmen, and not with the company.” [Wencker v. Railroad, 169 Mo. 592.]
We think that these two and kindred authorities cited by appellant have no application to the question under consideration. The appellant has failed to make the distinction between a licensee by sufferance and.
We are cited to Taylor v. Railway, 86 Mo. 457, as a parallel case. The plaintiff as the wife sued to recover the statutory penalty of five thousand dollars for the death of her husband, whose death was alleged to have been caused by the negligence of defendant. The deceased was in the employ of the Union Railway & Transit Company as a lamp-lighter, whose duty it was to put up lamps in the evening and take them off the targets in the morning, in the St. Louis Union Depot yards Avhich contained thirteen parallel tracks connected by many SAvitches. Deceased was walking on one of the tracks at the time he was struck by an engine and killed. He was not engaged in attending to the lamps at the time, but was going towards his shanty near Fourteenth Street Bridge which crossed said tracks. The engine was
In the case under consideration the coach track was not so used by the company. Its cars and engines did not pass over it in coming and going, nor was it used generally for switching purposes. It was used principally’as a place of deposit for cabooses, ice and Pullman cars when not in actual service. The latter were in the care of plaintiff and his gang. He was to see that they were kept clean and in repair, and guarded within and without from injury. In order to a proper performance of his duty it was necessary that he, or some of his gang, should be on or near the track. When it became necessary to move any of these cars, whether in bringing them on or taking them off the track, it was the duty of defendant to give the usual signal or other necessary warning of the intended movement as a proper
We believe that the plaintiff made out a case, which under the law, as we understand it, justified the verdict and judgment. The action of the court in overruling the defendant’s demurrer to plaintiff’s case as made out by the evidence is affirmed. Judgment affirmed.