Tetwiler v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 29 March 1912
• Citation: 145 S.W. 780,242 Mo. 178
• Parties: CHARLES W. TETWILER, Administrator of the Estate of Thomas Allen, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Missouri Supreme Court

145 S.W. 780

242 Mo. 178

CHARLES W. TETWILER, Administrator of the Estate of Thomas Allen, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.

Reversed and remanded (with directions).

David W. Hill for appellant.

(1) The switchmen in failing to give any warning to Allen, who was about to pass between uncoupled freight cars on the repair track, and the engineer, who was in plain view of the torches of Allen and Sheets, in backing up the engine without any ringing of the bell or sounding of the whistle or other warning, were guilty of gross negligence. 4 Thompson on Negligence, sec. 4489, p. 552; Black v. Railroad, 172 Mo. 177; Penney v. Stock Yards Co., 212 Mo. 328; Rinard v. Railroad, 164 Mo. 274; Wilkins v Railroad, 101 Mo. 105; Cambron v. Railroad, 165 Mo. 543; Gaska v. Car & Foundry Co., 127 Mo.App 169; Reagan v. Railroad, 93 Mo. 348. (2) There is no assumption of risk in this case, and it was harmful error to instruct the jury in that regard, as requested by the defendant. 4 Thompson on Negligence, sec. 4613, p. 631; Curtis v. McNair, 173 Mo. 280; Blanton v Dold, 109 Mo. 64; Settle v. Railroad, 127 Mo. 336; Wendler v. Furnishing Co., 165 Mo. 527; Pauck v. Dressed Beef Co., 169 Mo. 467; Jewell v. Bolt & Nut Co., 231 Mo. 194; Obermeyer v. Chair Co., 229 Mo. 109; George v. Railroad, 225 Mo. 405; Burkard v. Rope Co., 217 Mo. 481; Zeis v. Brewery Association, 205 Mo. 652; Charlton v. Railroad, 200 Mo. 433. (3) There was absolutely no evidence of any contributory negligence, and the court's instructions to the jury in this regard, as requested by the defendant, were confusing, misleading and grossly prejudicial. Rinard v. Railroad, 164 Mo. 288. (4) The giving of numerous instructions in a case of this character has been condemned by this court. Blanton v. Dold, 109 Mo. 77. (5) In the fourth instruction given to the jury at the request of the defendant, the court told the jury: "If you find that by waiting, or exercising care on his part, he could have ascertained that the cars were about to be moved, and that he failed to exercise such caution and his death resulted in consequence of being struck by the cars, then your verdict must be for the defendant." Of course, if he had waited he would not have been struck. This instruction was tantamount to peremptorily instructing the jury to return a verdict for the defendant, as was said in the case of Dlauhi v. Railroad, 139 Mo. 297: "The court had about as well have peremptorily instructed the jury to return a verdict for defendant, as they could not have done otherwise under the instruction as given."

R. T. Railey, J. F. Green and N. A. Mozley for respondent.

(1) Deceased, on his own responsibility and without paying any heed to his safety, deliberately walked in front of the moving cars and was injured. Under such circumstances, his contributory negligence would bar a recovery, even had it been the duty of defendant's engineer to warn him of the approach of said cars. Taylor v. Railroad, 86 Mo. 462; Maher v. Railroad, 64 Mo. 275; Zimmerman v. Railroad, 71 Mo. 488; Hayden v. Railroad, 124 Mo. 573; Degonia v. Railroad, 224 Mo. 564; Cahill v. Railroad, 205 Mo. 408; Loeffler v. Railroad, 96 Mo. 270; Prewitt v. Eddy, 115 Mo. 304; Hutchinson v. Railroad, 195 Mo. 546; Magee v. Wabash, 214 Mo. 546. (2) Deceased was familiar with the operation of the engine and cars in the yards where he worked and knew the dangers incident to passing over the tracks, and it was not respondent's duty to warn him of the movement of the cars which struck him. Evans v. Railroad, 178 Mo. 514; Loring v. Railroad, 128 Mo. 359; Aerkfetz v. Humphreys, 145 U.S. 418; Elliott v. Railroad, 150 U.S. 245; Hitz v. Railroad, 152 Mo.App. 687; Ginnochio v. Railroad, 155 Mo.App. 163; Davis v. Railroad, 159 Mo. 1. (3) There is no testimony in the record tending to show that respondent's engineer actually saw deceased in a position of peril in time to avoid the injury, and hence respondent is not liable on that ground. Ginnochio v. Railroad, 155 Mo.App. 163; Hitz v. Railroad, 152 Mo.App. 699; Evans v. Railroad, 178 Mo. 514. (4) Deceased assumed all of the ordinary risks incident to the moving and handling of the cars and locomotives of respondent when he undertook to go to a place in the yards where his duty did not call him. Williams v. Railroad, 119 Mo. 310; Evans v. Railroad, 178 Mo. 514; Loring v. Railroad, 128 Mo. 357.

BROWN, C. Bond, C., concurs. Valliant, J., concurs in the whole opinion; Graves, P. J., Lamm and Woodson, JJ., concur in separate opinion by Graves, P. J. Graves, P. J., concurring and dissenting.

OPINION

BROWN, C.

This is an action under section 2864, Revised Statutes 1899, for the death of Thomas Allen, an employee of defendant, who is alleged in the petition to have been killed while passing between two of defendant's uncoupled freight cars, by the negligence of defendant in running one of the cars against him and crushing him between them. The answer was a general denial, a plea that the deceased was employed to work in and about the defendant's roundhouse and yards at Poplar Bluff and upon and about its engines, and that in accepting such employment he assumed all the risks incident thereto, and a plea that his death was the result of his own negligence in attempting to cross one of the railroad tracks in the yard in front of a moving train.

The evidence tended to show that the Poplar Bluff yards were extensive, consisting of eleven or twelve tracks, counting from the west side, then a shanty or shack consisting of a small room provided for the protection of the men from the weather. One witness, the engineer, testified that "it was put there for the protection and convenience of the fire knockers, who kept the oil for their torches in it, and ate their lunches there." Another witness, himself one of the fire knockers, describes it as "the house where we stay in from the time we go from one engine to another." On the east side of this shanty was the track on which the accident occurred. Bad order cars were set and repaired on it. On the east side of this track were two others, with the coal chute, which was directly opposite the shanty, between them. The track in question approached and passed the shanty from the southwest, on a curvature to the left, to its connection north.

The accident occurred at eleven thirty o'clock in the night of January 9, 1908. The deceased was a "fire knocker," his duty being to draw the fires from locomotives as they came in from their runs and take them to the roundhouse. The nature of this work is such that it is done in pairs, and he and David Sheets, a witness, were "partners" in it. Their duties were principally at the coal chutes opposite the shanty, where engines were coaled and the cinder pits were situated. The roundhouse was in the neighborhood of one hundred yards in a southeasterly direction from the shanty, so that in approaching the latter from it, one would be approaching diagonally the railroad track.

At the time of the accident the deceased and his partner had taken an engine to the roundhouse, and were returning to the shanty where they intended to eat their midnight dinner. From sixteen to twenty cars were standing on the track in question, where they had been put in from the north, and an opening left in about the middle of the string opposite the shanty, variously stated to be from three to six feet wide. The car north of the opening was a box car upon the south end of which the carpenters had been at work that day putting in new "bumpers." The drawbar had not yet been replaced, so that the car could not be coupled to another. At the south side of the opening was a bad order coal car loaded with coal. Allen and his partner approached this opening with lighted torches. An engine had been backed in at the north end of this track, and was slowly working south running at the rate of about three miles per hour when in motion, without either ringing the bell or sounding the whistle when starting, or stopping, or at any other time, picking up cars as it came to them, and after making the coupling, starting for the next one.

The approaching knockers could not see the engine because of a box car behind its tender, and its headlight was directed away from them, but the engineer, from his cab, could and did see the torches which they carried until they had approached to within thirty feet of the opening. There were, according to the witnesses who testified on that question, except the engineer, no switchmen visible on the east side of the track, which was the outside of the curve, nor on the cars, and one of them said that the switchmen came up from the west side after the accident, while the engineer testified that he was taking signals from his (the east) side of the cab.

The two fire knockers did not stop when they got to the opening, but entered it, and as they were passing through the "switch engine hit some cars above, and caught Allen between the cars," and crushed him so that he died in about half an hour. Rule 30 of the Standard Rules of the St. Louis, Iron Mountain & Southern Railway Company was introduced. It reads as follows: "The engine bell must be rung when the engine is about to move."

After the plaintiff's evidence was in, both parties rested, and the defendant asked the court to peremptorily instruct in its favor, which was refused. The court then, at its request instructed the jury, among other things, that the deceased "by engaging in the employment in the yards of defendant, in Poplar Bluff, assumed and took upon himself all the risks incident to such employment, among which were...