Cahill v. Chicago & Alton Ry. Co.

• Decision Date: 11 June 1907
• Citation: 103 S.W. 532,205 Mo. 393
• Parties: FANNIE CAHILL v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

103 S.W. 532

205 Mo. 393

FANNIE CAHILL v. CHICAGO & ALTON RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 11, 1907

Appeal from Randolph Circuit Court. -- Hon. A. H. Waller, Judge.

Reversed.

Scarritt Scarritt & Jones for appellant.

Defendant's demurrer to plaintiff's evidence and its peremptory instruction should have been given. Aerkfetz v Humphreys, 145 U.S. 418; Riccio v. Railroad, 189 Mass. 358; Lynch v. Railroad, 159 Mass. 536; Keefe v. Railroad, 92 Iowa 182.

Robertson & Robertson for respondent.

(1) Plaintiff's first instruction properly declared the law. The presumption of due care always obtains in favor of the plaintiff in the absence of testimony to the contrary. Meadows v. Ins. Co., 129 Mo. 76; Flynn v Railroad, 78 Mo. 212; Buesching v. St. Louis Gas Light Co., 73 Mo. 233; Holding v. St. Joseph, 92 Mo.App. 143; Smiley v. Railroad, 160 Mo. 629; Weller v. Railroad, 164 Mo. 180; Swanson v. Sedalia, 89 Mo. 121; Railroad v. Landrigan, 191 U.S. 461; 22 Am. and Eng. Ency. Law (2 Ed.), 1280, note 1. (2) It was negligence for defendant to back the train without signal or notice. Rinard v. Railroad, 164 Mo. 270; Rine v. Railroad, 100 Mo. 228; Sullivan v. Railroad, 97 Mo. 119; Dixon v. Railroad, 109 Mo. 426; Church v. Railroad, 119 Mo. 203; Fleming v. Railroad, 89 Mo.App. 129; Thompson v. Railroad, 93 Mo.App. 548; Kelly v. Railroad, 95 Mo. 279; Weiss v. Iron Co., 31 C. C. A. 363, 88 F. 23; McMarshall v. Railroad, 80 Iowa 757; Railroad v. Dunleavy, 129 Ill. 132; Whalen v. Railroad, 75 Wis. 654; Erickson v. Railroad, 41 Minn. 500; Sobeski v. Railroad, 41 Minn. 169.

OPINION

BURGESS, J.

Plaintiff, the widow of James Cahill, deceased, brought this suit in the circuit court of Randolph county, at Moberly, Missouri, against the appellant and one Rufus McCormick, the locomotive engineer of said company, for five thousand dollars damages, for negligently and carelessly backing upon and over deceased one of the engines and tenders of defendant company, of which said McCormick was at the time in charge and control as the servant of the company, and killing him, said Cahill.

The accident occurred on the morning of February 15, 1903, and suit was begun on July 25, 1903.

On the first day of the September term, after the filing of the petition and bond for removal to the Federal court for the Northern Division of the Eastern District of Missouri, at Hannibal, which petition was denied, the defendant company, as it might do, took a transcript of the record and filed it in the Federal court, where said cause remained until the seventh day of January, 1904. The plaintiff then filed her motion to remand, which coming on to be heard before Judge E. B. Adams, sitting as a circuit judge, the said cause was remanded to the State court, and a certified copy of the order remanding the cause was filed with the clerk of the circuit court at Moberly, Missouri, February 15, 1904.

On September 13, 1904, the defendants filed separate answers. The answer of the railway company was a general denial, and a plea of contributory negligence and assumption of risk. The answer of McCormick was, first, a general denial, and then an allegation that the alleged injury, if due to any negligence of any agent or servant of the defendant railway company, which this defendant denied, such negligence was that of a fellow-servant of the said James Cahill, working together with him at the time and place mentioned, in a common purpose, and that as to the liability of this defendant, such negligence, if any, and the injuries resulting therefrom were within the risks and perils of the said James Cahill's employment, and were assumed by him in his said employment.

The action was tried in the circuit court at the September term, 1904, before the court and a jury, resulting in a verdict and judgment in favor of the defendant, McCormick, for costs, and in favor of plaintiff and against the railway company for the sum of five thousand dollars. After unsuccessful motions for new trial and in arrest, the defendant company appealed.

The facts out of which this action grew are substantially as follows:

The deceased, James Cahill, worked for the defendant railway company in its yards at Slater, Missouri, where it maintained a division, and where it owned and used a large number of tracks. On the night of February 14, 1903, there was a heavy fall of snow, and a force of men, including the deceased, was required to remain in the yards during the night to keep the switches cleared of snow. Frank Cahill, brother of the deceased, was section foreman, and he remained with the men until about two o'clock next morning, when he went home, leaving the deceased in the yards with the instructions to keep the switches cleared of snow. He also instructed him to go ahead of a certain engine called the "Hummer" engine which left the roundhouse in the morning and see that there was no snow or ice on the switches ahead of it. The deceased carried with him a lantern and a broom, the latter for the purpose of clearing the snow off the rails, and it would appear that in order to perform his work it was necessary to go between the tracks and clear the snow away from the points of the rails at the switches, and that, to do this effectively, it was often necessary to stoop or kneel down while working.

The engine in question, No. 251, was backed out of the roundhouse some time before six o'clock on the morning of February 15, 1903, for the purpose of pulling a passenger train called the "Hummer" from Slater to Kansas City, and which left Slater at 6:10 a. m. The track on which the engine backed out was called the "coming-out track," and ran by a water tank, and in order to reach the main track it was necessary for the engine to cross several side tracks and switches and also the public road which crossed the tracks. On this occasion the tender of the engine was filled with coal, and backed out to the water tank by the hostler, and then the engineer, Rufus McCormick, took charge of it. After the engine's tanks were filled with water it was backed away slowly from the water tank towards the main track by the engineer, and it would appear that the deceased was struck by the engine or tender at a switch about one hundred and fifty feet east of the water tank and was dragged along several hundred yards, to the last switch at the main track, where the body fell off and was found. It was yet quite dark, and nobody saw the deceased struck; neither the engineer nor fireman knew anything about it until after the engine had arrived at the depot on the main track. At the first switch east of the water tank there was found a portion of deceased's clothing, also blood and pieces of flesh, and the track or imprint of the body as it was dragged along was easily traceable through the snow from the point where it was struck to the point where it was found. The handle of the broom carried by the deceased was cut in two, and his lantern was found beside the track at the point where he was struck.

The testimony on the part of the plaintiff differs widely from that for the defendant, especially as to signals.

According to the testimony of George Adams, one of plaintiff's witnesses, who worked in defendant's roundhouse, and who was on the tender of the engine while its tanks were being filled with water, the engine was backed away from the water tank and passed over the first switch without any signal whatever. He noticed a headlight on the engine, but stated that there was no light on the rear end or tender as it backed away. There was a small light hanging from the roof of the cab, but this, he said, could not be seen from the direction the engine was moving on account of the fact that the tender was piled full of coal and obscured it. Witness said that the track curved east of the water tank, and that the engineer from the position he occupied could not see a person on the track ahead of him, as the coal on the tender was piled so high that he could not look over it. He did not hear the bell ring nor the whistle blow before the engine started, nor did he see anybody on the engine save the engineer.

Ben Givens testified that he lived within one hundred yards of the railroad track and by the county road which crossed the track about one hundred and fifty yards east of the water tank; that on the morning deceased was killed he was awakened by two loud cries of somebody in distress; that he got up and looked out in the direction of the railroad yards, which was the direction the cries came from, but could see nothing except some cars in the yard. It was then about 5:30 o'clock, and the snow was blowing and drifting. He heard a sound as of an engine letting off steam, but did not hear the sound of a bell or whistle.

The deceased's brother, Frank Cahill, testified that "when there is snow on the rails to amount to anything, you cannot hear the engines if they don't open the exhaust or ring the bell, and an engine will run right up on you without your knowing it. I swept switches for five years, and I know that engines will slip up on you while you are doing it when there is snow on the ground, and you cannot hear them." He also testified that in moving an engine at night from the roundhouse to the main track it was always the custom to have a switchman go with it, and that the switchman either went ahead of the engine or rode on the hind end of it as it backed out.

Rufus McCormick, the engineer, testified for the defendant that the whistle was blown three times before the engine was started east from the water tank, and that fireman Driscoll was with him on the engine. He further testified that Pat Freel, a switchman, had gone ahead of the engine to line up the switches, and...