84 Mo. App. 411 | Mo. Ct. App. | 1900
Action to recover damages for personal injuries. The facts which the evidence tends to establish may be grouped in this wise. The plaintiff with a span of horses attached to a wheel scraper was at work under a contractor in cleaning out and opening the ditches on the sides of the defendant’s track where it runs through a long, deep and curved cut. He had been thus engaged with others for about a month previous to the time at which he was struck and injured by one of the defendant’s passing trains. About thirty feet west of where he was struck there was an overhead bridge, the bents of which obstructed his view to the west. In cleaning out the ditches, the dirt was wheeled to the east end of the cut and wasted in a pile on the side of
There were about twenty or twenty-five men at work in the cut at the time, with some twelve or fifteen wheelers, two or three wagons, and two plows, with four horses to each plow. No one else was injured besides the plaintiff. He testified, on cross-examination, that he had to get down and get hold of the lever and bring it down and latch it, and if he had stood down in the ditch, he would have been off of the ends of the ties; that if he had stood behind his wheeler, he
The plaintiff gave in evidence certain rules of the defendant, amongst which were the following, to-wit: “39a. One long and one short blast of the whistle is the signal for approaching curves, tunnels, snow-sheds and other obscure places, thus (--).” “215. Unless authorized by special order in each case, freight trains must not exceed a speed of one mile in two minutes.”
The uncontradicted evidence was to the effect that the train which struck the defendant was a freight train and that it was running at a very high rate of speed—perhaps, forty miles an hour—and that it gave no signal whatever in approaching the curve in which plaintiff was working. There was evidence introduced which tended to prove that at least during the time the plaintiff had been engaged at work in said cut that all of defendant’s trains passing through it had slowed up.
The trial resulted in judgment for the plaintiff and the defendant appealed.
The defendant as a ground for the reversal of the judgment insists that the evidence relating to the speed of the train and its failure to give the signals required by its rule was incompetent under the pleadings and that the court therefore erred in admitting it. Turning to the petition, and it is found, in substance, to allege that while plaintiff was at work in said cut, driving his team along on the north side of defendant’s railroad track about ten or twelve feet east of said overhead bridge, an engine and train of cars in
Railway companies may make reasonable regulations as to the mode of the performance of their duties as carriers. And their duty to the public requires that they run their trains according to their rules and regulations. Logan v. Railway, 77 Mo. 663. Here, the defendant’s regulations required trains on approaching curves, snow-sheds, tunnels and other obscure places to give certain signals. This undoubtedly was not only for the protection of its trains and the passengers and freight carried thereon, but for the protection of its trackmen and others authorized to be in any of such obscure places. The plaintiff was not a trespasser on defendant’s track. He was rightfully there under the invitation and direction of the defendant’s contractor who was engaged in opening the ditches in the sides of defendant’s track. The contractor and those employed by him in carrying on the contract work were entitled to as much protection as if they had been trackmen. The safety of the men at work under the contractor required that the defendant’s servants in charge of its trains 'approaching the curve should give the signals. It was the duty of defendant to make the cut, in which the contractor and his men were required to work, reasonably safe, regard being had for the nature of the work and the place where it was to be performed. Any neglect of this precaution on the part of the defendant for their safety in this regard, resulting in personal harm to any one of them, would constitute a tort for which there would be liability. And so an injury happening to any one of them by reason of the neglect of the defendant to give the required signal would impose liability. The evidence tended to prove that the rule in relation to the speed of freight
It can not be doubted but that the employees of the defendant managing the train which hurt the plaintiff knew that the contractor and his men were at work at the place where the plaintiff was hurt, and that they had every reason to expect that the latter, or some of them, wore then on defendant’s track, and that it was not therefore clear. And such former were aware of the danger to which the latter would be subjected by a reckless running of the defendant’s train through the cut. It is thus made apparent that the defendant’s trainmen managing the engine that struck plaintiff were under a very binding obligation to approach and run their train through the cut with that degree of care that was proportionate to the danger.' If they had given the required signals, reduced the speed of their train and have been on the alert they would, it seems to us, have no more
Even if the evidence does tend to show that the defendant was guilty of negligence, still was not the plaintiff guilty of such concurring negligence as to preclude his right of recovery? As already stated, the plaintiff was driving his team attached to a wheeler scraper along the north side of the defendant’s track when the wheeler bar got unlatched. He drove on a short distance, himself walking on the ends of the ties by the side of the wheeler, when he stopped his team, stepped north into the ditch, relatched the wheeler bar and, as he stepped back on the ends of the ties, Byler, who was behind him, came rushing around ahead of him with his scarry team and as he did so he exclaimed: “Look out, Sam, there is a train.” On receiving this warning, instead of promptly taking one step north into the space intervening between the track and the side of the cut, and thus getting out of the way of the approaching train, he stood still and looked to the east. Although he had received the warning which had been customarily given when any one of the men there at work discovered, the approach of a train, he chose not to heed the warning further than to stop and investigate for himself whether there was any occasion for the giving of
It follows that the action of the trial court in denying the defendant’s demurrer to the evidence was error, for which we must reverse the judgment.