184 Mo. App. 677 | Mo. Ct. App. | 1914
This is an action for personal injuries alleged to have been caused by negligence of defendant in the operation of one of its passenger
Plaintiff’s contract with his employers who, as stated, were independent contractors, required him' to board and lodge at the camp cars which were maintained on the new track with the knowledge and consent of defendant. In using the path which afforded the only means of ingress and egress to and from the camp he was in the exercise of a lawful right and in no sense was a trespasser on the property of defendant. He was what is termed in some of the cases a licensee by invitation and was entitled to the same care for his safety the law would have exacted of the operators of defendant’s trains towards him if he had been employed by defendant as a track laborer, instead of being employed by an independent contractor. [Weaver v. Railroad, 170 Mo. App. 1. c. 289, et seq.; Nelson v. Railroad, 132 Mo. App. 1. c. 694; White on Personal Injuries, sec. 864.]
The status of plaintiff was that of a track workman or section hand and the general rule is that as to such laborers who are required to keep out of the way of trains, the engineer of a passing locomotive is entitled to indulge the presumption of a clear track and is not required to be on the lookout for them. [Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Degonia v. Railroad, 224 Mo. 564; Sissel
The necessity for order and system in the operation of a railroad is so great and of snch vital importance that the courts have always recognized and enforced reasonable rules and regulations prescribed by the company which give precedence to certain trains and classes of employees over others and require those of an inferior grade to give their1 superiors a clear track. Section men and track builders and repairers —those whose business it is to work upon and repair railroad tracks- — are supposed to look after their own personal safety, and to know of the time at which trains pass, to look for them, and see them, and to move out of their way.” [Sissel v. Railroad, 214 Mo. 1. c. 528.; Clancey v. Transit Co., 192 Mo. 1. c. 657; Evans v. Railroad, 178 Mo. 1. c. 517.] Under special conditions and circumstances the humanitarian doctrine has been held to require that a track laborer be given the protection of the duty of the operators of trains to keep a lookout at the place where he is working (e. g. Hardwicke v. Railroad, 168 S. W. 328) for the reason, as stated in the Rashall case, supra, “that railroads are required to exercise at all times a degree of care and vigilance pommensurate with the occasion. This implies a duty on their part correlative with the danger to be encountered. Hence in passing portions of their tracks subjected to public use or license, they are charged with a knowledge of what is actually seen or what could be seen with proper care.”
But at places where the engineer has no reason to anticipate the presence of other persons than track workmen and their occupation or situation includes no special or extraordinary element of danger, the engineer is entitled to indulge the presumption of a clear track and is not required to be on the lookout for such employees. Plaintiff’s activities while on or off duty frequently placed him on or near the tracks over
Of course it requires but little effort for an engineer to give a warning signal and it is his duty to do so whenever he sees in the appearance of a workman on or near the track that which suggests that he is unaware of the approach of the train and thereby is in danger of being struck, but in the absence of any such appearance, as in the present case, the engineer is not required to burden himself with the performance of an apparently unnecessary task. The burden was on plaintiff to show that the engineer actually saw him in a position of obvious peril in time to prevent the injury by giving a signal. His evidence fails to show that he was in such position and it follows that he has failed to make a case to go to the jury. The court committed no error in directing a verdict for defendant.
Affirmed.