King v. St. Louis and San Francisco Railraod Company
| Citation | 127 S.W. 400,143 Mo.App. 279 |
| Parties | MARY J. KING, Respondent, v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Decision Date | 04 April 1910 |
| Court | Missouri Court of Appeals |
Appeal from Webster Circuit Court.--Hon. Argus Cox, Judge.
AFFIRMED.
STATEMENT.--This was an action brought by the widow of W. C. King, who on the 30th day of September, 1904, at the city of Springfield Missouri, was killed by being struck by defendant's cars while attempting to cross a railroad track of the defendant company in its switch yards. The plaintiff obtained judgment for the sum of five thousand dollars from which an appeal has been perfected by the defendant to this court.
As no question is raised over the pleadings, they are not inserted.
The place where plaintiff's husband was killed was where a plank passageway extended at right angles across a number of tracks in the switch yards of the defendant. These tracks, a dozen or more in number, were parallel, running east and west, and the plank passageway was about twelve feet in width, extending across the tracks from north to south. This part of the yard was used for standing cars which were crippled or for any reason out of use. A large number of cars usually stood on these tracks, leaving a space between the ends of the cars about twelve feet wide, a sort of a lane between the ends of the cars, which were backed up on either side of the passageway. This space between the cars was necessary for the men to use in going to and from their work and to and from the place where, under the rules of the company, they were required to register each morning before going to work. Appellant says that this road was constructed for the use of employees, presumably for the purpose of affording them a reasonably safe passageway and preventing injuries that might occur if the men were allowed to become scattered promiscuously while crossing the tracks. Some five hundred employees passed every day over this plank roadway formed by cutting the trains. The passing of the employees over this roadway generally occurred just before beginning their work in the morning between six and seven o'clock and at noon and night after their work was done.
On the morning of the accident, the tracks were full of cars when W C. King passed along the roadway between the cars which were backed up on either side against the roadway. It was about twenty minutes of seven o'clock, the time when the five hundred employees were accustomed to cross over the passageway going to work and to register as required by the rules of the company. King had been at work in the yards eight or nine days, but so far as the evidence shows had never worked about the yards or shops before that time; but he had worked for the company several years on construction work with shovel and bridge gangs. He was going to work that day temporarily on scrapiron, but in what particular part of the yards does not appear; however, it was not at or near the place where he was killed.
The evidence tended to show that during the time King had worked about the yards, the cars had never been coupled across this passageway in his presence while the men were going to work but that the coupling was usually done early in the morning before the employees began to cross the tracks.
Appellant's switchman, W. F. Deaton, testified that on this particular morning he was told by his foreman to go down and watch the crossing (where the injury occurred); that it was then about six o'clock and people would be passing there.
King passed along the passageway on the morning he was killed going south towards the place where he was required to register, and this, as before stated, was about twenty minutes of seven o'clock. When he got upon track No. 11 which was apparently about half-way from the north to the south side of the passageway, he was caught and crushed to death by a train backing across the passageway from the west against a car on the opposite side. The tracks of the defendant company on the west side turned sharply towards the south. There was a train on the west side of the passageway on track No. 11, with seven cars to the first cut which stood next to the crossing, and this train had been cut in three sections. The engine was around the curve on the other side of the roundhouse and out of sight of a person traveling over the passageway. There were perhaps about twenty cars in the train, including the engine, standing west of the passageway on track No. 11. Right at the crossing on the east side of the passageway was a boxcar; on the west side next to the passageway was a flatcar.
The evidence as to what took place at the time King approached the crossing is conflicting. The evidence for the defendant tended to show that at the time King approached to cross track No. 11, the defendant's switchman, Deaton, stood facing King looking north in plain view within a few feet of him, and that by motioning, calling and hallooing, the switchman warned King not to go upon the track, but that deceased paid no heed to the warnings and went upon the track without stopping to look or to listen; that he was caught between the boxcar and the flatcar receiving injuries from which he soon died; that at the place of the accident and soon thereafter, deceased declared to Deaton, the switchman, that he and not the company was to blame for the injury. The testimony of two other witnesses tended to corroborate Deaton as to his warnings to King not to go upon the track.
The evidence for the plaintiff tended to show that H. J. Height, brother-in-law of deceased, was a few feet behind King and also in the passageway at the time of the accident; that he too was going south but was some thirty feet behind King and in plain view of him at the time the accident occurred. He testified that looking south from where he stood, at the time of the accident there was no person in view on the south side of track No. 11 and that no notice was given to deceased; that if any person had been south of the track near the place of the accident, he would have seen him. He further testified that he was at the place of the accident immediately after it occurred; that he took his brother-in-law in his arms and remained with him until he was removed in an ambulance, and that King made no statement as to his being to blame; that King made no statement to anyone except to him, and made no statement to Deaton, the switchman. That King's only remark was when he asked him (Height) to go and get his boy and said, "It is all over with me, boys." The evidence also tended to show that King on approaching track No. 11 could only see four or five carlengths to the west and could not have seen the first cut in the train west of the passageway.
Judgment affirmed.
W. F. Evans, W. J. Orr and J. H. Orr for appellant.
(1) The trial court erred in refusing to direct a verdict for the defendant, under the undisputed evidence and the admitted physical facts. Loring v. Railroad, 128 Mo. 349; Aerkfetz v. Humphreys, 145 U.S. 418; Elliott v. Railroad, 150 U.S. 245; Fore v. Railroad, 114 Mo.App. 551, 89 S.W. 1034; Davis v. Railroad, 129 Mo. 1; Sharp v. Railroad, 161 Mo. 214; Zumwalt v. Railroad, 175 Mo. 288; Evans v. Railroad, 178 Mo. 509; Cahill v. Railroad, 205 Mo. 393; Degonia v. Railroad, ___ Mo.App. ___, 123 S.W. 807; Bridge Co. v. Bainum, 146 F. 367; Columbus, etc., Co. v. Burns, 9 Ohio C. C. 276; Haley v. Railroad, 7 Hun 84; Railroad v. Tabor, 7 Kan.App. 481, 54 P. 136. (2) There was no actionable negligence shown on the part of the defendant. Wickham's Admr. v. Railroad, 122 S.W. 154; Conniff v. Railroad, 124 Ky. 763, 99 S.W. 1154; Railroad v. Harrod's Admr. (Ky.), 155 S.W. 699; Cahill v. Railroad, 205 Mo. 393. (3) King assumed the risks of injury from moving cars in the company's yards where he was engaged to work. Adolff v. Columbia Pretzel Co., 100 Mo.App. 206, 73 S.W. 321; Ives v. Railroad, 107 N.W. 452, 128 Wis. 357; Vaunday v. Railroad (Wis.), 109 N.W. 926; Railroad v. Skiles, 10 Am. Neg. Rep. 175; Railroad v. Downs, 106 F. 641; Railroad v. Voelker, 129 F. 522; Jackson v. Railroad, 14 S.W. 54; Williams v. Railroad, 119 Mo. 316, 24 S.W. 782; McKee v. Railroad, 96 Mo.App. 671, 70 S.W. 922; Shields v. Railroad, 87 Mo.App. 637; McDermott v. Railroad, 87 Mo. 285. (4) King failed to discharge the legal duty to look and listen for moving cars and for signals and warnings. Anson v. Railroad, 87 P. 1058; Kelly v. Railroad, 11 Mo.App. 1; Steber v. Railroad (Wis.), 91 N.W. 654; McCarty v. Railroad, 20 Ohio C. C. 536.
A. H. Wear, Samuel N. Dickey and J. T. White for respondent.
(1) It was the duty of the defendant to exercise reasonable care to provide a safe road along which its employees must pass. If the road became dangerous by reason of coupling cars across it while the men (to the number of five hundred) were going to work, it was defendant's duty to provide some method of warning and to warn them of the danger. Koerner v. Car Company, 209 Mo. 141; Moore v. Railroad, 85 Mo 588; Orendorf v. Railroad Ass'n, 116 Mo.App. 348; Snyder v. Railroad, 54 N.E. 475; Steffe v. Railroad, 156 Mass. 262, 30 N.E. 1137; Railroad v. Hynes, 50 S.W. 624; Railroad v. Kernochen, 45 N.E. 531; Sours v. Railroad, 84 N.W. 114; Ditberner v. Railroad, 2 N.W. 69; Schultz v. Railroad, 44 Wis. 638; Hayes v. Railroad, 74 F. 279; Taylor v. Railroad, 27 S.W. 663; Felice v. Railroad, 43 N.Y.S. 922; Farley...
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