16 S.W. 924 (Mo. 1891), Schaub v. Hannibal & St. J.R. Co.

Citation:16 S.W. 924, 106 Mo. 74
Opinion Judge:Gantt, P. J.
Party Name:Schaub v. The Hannibal & St. Joseph Railroad Company, Appellant
Attorney:Spencer, Burnes & Mosman and W. M. Boulware for appellant. Harrison & Mahan for respondent.
Case Date:June 23, 1891
Court:Supreme Court of Missouri
 
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Page 924

16 S.W. 924 (Mo. 1891)

106 Mo. 74

Schaub

v.

The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri, Second Division

June 23, 1891

Page 925

Appeal from Hannibal Court of Common Pleas. Hon. Thos. H. Bacon, Judge.

This is an action for damages by respondent as widow of John J, Schaub, deceased, against the appellant, for the alleged negligent killing of said John J. in this, that on the ninth of November, 1887, said deceased was a brakeman on one of defendant's freight trains, and, in endeavoring to get off said train to uncouple some cars, he was struck by a car negligently left standing on a side or switch track of defendant so close that it was dangerous.

The answer was a general denial and a plea of contributory negligence; that the injury was caused solely by the negligence of said John Schaub in leaving his post on the top of defendant's car while it was in motion and entering the station at Palmyra, in violation of defendant's rules in force at the time and well known to said Schaub, and negligently placing himself on the side of said car while it was in motion.

Deceased was twenty-nine years, five months old at date of his death. He left a widow and two children. He had worked five or six months for defendant as brakeman on freight train on the division between Hannibal and Brookfield. No one saw the deceased when he began to fall from the car on which he was working. The crew to which he belonged consisted of Pratt as conductor; Graham, engineer; McKevin, fireman; and Alexander Howey and Schaub as brakemen. Howey was on the same car with deceased when he fell. He was a witness for plaintiff, and testified that on night of eighth of November, 1887, his crew left Brookfield with freight train number 13, for Hannibal. They arrived at Palmyra at about 4:30 in morning of ninth of November, 1887. They left the junction for Hannibal between five and six o'clock. Palmyra station is about one mile from the junction. At the junction they had orders to set some cars on sidetrack at Palmyra. While going round the curve and approaching the station, Schaub and Howey were standing on top of the third or fourth car from the caboose. The head or front cars were those that were to be set on sidetrack.

Howey says, "When we reached a point half way between the switch-bar at the north end of the switch track, and the station house, I turned to set the brake to stop the train to set out the cars. While setting the brake I saw Schaub falling between the cars. When I last saw him before that he was sitting on the side of the north end of the car. At the side of this end was a ladder." He didn't see him when he began falling.

The train was running at a rate of five or six miles an hour at the time. There were three freight cars standing on the sidetrack. "Can't tell the exact point at which they stood, but we were opposite them when I saw him falling. I saw the three freight cars at the time. Schaub fell on the side next to these cars. We were on the straight track at the time."

Witness could not say whether Schaub was on the ladder or not, or whether he was struck by the cars. The sidetrack is some three hundred or four hundred yards in length and lies east of the main track, and between the main track and the station house, and is connected with main track by switches at both ends, north and south. As soon as he saw Schaub fall he signaled to stop. After the cars stopped, he went to Schaub and found him lying between the main and sidetracks about four feet south of the south end of the car standing on the sidetrack nearest the switch. His leg was crushed. This witness was asked by plaintiff what was the custom in regard to setting out cars. He answered, "By pulling up and stopping, cutting them off and then go up and set them out."

He also testified that it was his (Howey's) duty to cut the cars and throw the switch and that it was Schaub's duty to stay on top of the car until it was stopped on sidetrack. He also testified that there was a rule of the company in force at that time strictly for bidding the uncoupling of cars while in motion. He testified that every time card had a copy of the rules on it, and that he had seen Schaub with a copy of these rules.

Graham, the engineer, testified that, immediately after receiving the signal to stop, he did so and went back to where Schaub was lying between the tracks. Schaub there said to Graham, that "when he went down on the ladder and went to swing himself around in between the cars to pull the pin, the car on the sidetrack brushed him off. The accident occurred after five o'clock. It was a little bit foggy. We were using our lamps as it was not light enough to see the signals."

Krummell testified for plaintiff that for many years he had been hauling flour from one of the city mills to the depot for shipment; that he was thus engaged on the eighth and ninth of November, 1887. His last trip on the eighth was late in the evening of that day. He then saw some box freight cars, three he thought, standing on the north end of the sidetrack at the station. When he made his trip the next morning November 9, about seven o'clock, the cars were still standing there on the sidetrack in the same position in which they were standing the evening before. That morning he heard of the accident to Schaub. The cars were standing about midway between the station house and the north end of the sidetrack. The distance from the north car to the switch was not quite six rails' length. Cars were frequently set in there. That was the place for them to stand while being loaded and unloaded. He had unloaded a great many at that place. They were frequently set further north than the place at which these three cars were standing.

Ray testified that he was at Palmyra on the occasion of the funeral of Schaub, a day or two after his death. As Schaub died on the eleventh he could not have been there before the twelfth or the thirteenth. On the day of the funeral he saw blood on the end of a main-track tie twenty feet south from the frog or point where the rails came together. He measured the distance from rail to rail between the two tracks at the point where he found the blood. It was seven feet, six inches. The curve of the sidetrack, that is the distance from the frog to the point where it becomes parallel with main track, is about two rails' length, about thirty-five or forty feet. A rail is thirty-two feet long. Freight cars are thirty-two to thirty-four feet long, and eight feet wide. They project over the rails from one and one-half to two feet. The sidetrack north of station house would hold six to seven cars and clear the switch.

A section foreman of defendant lived about two hundred yards from the north end of the sidetrack, and there was no obstruction between his house and the sidetrack. The sidetrack where the three cars stood on the morning of the accident was in view of the station agent's window. A diagram of the location was offered in evidence to the jury. It was shown to a witness and was proven to be a fair representation, though not perfect as to distances, etc. The court excluded it as evidence, but permitted counsel to use it as an exhibit in connection with other evidence.

Among other things, the defendant, on cross-examination of the plaintiff's witness, Howey, proved the following rules of the defendant were in force for the regulation of its employes managing its trains:

"Every employe is required to exercise the utmost caution to avoid injury to himself or to his fellows, especially in switching or other movement of the trains."

"Jumping on or off trains, or engines in motion, entering between cars in motion to couple them, and all similar imprudences are dangerous and in violation of duty and are strictly prohibited; employes are warned that, if they commit them, it will be at their own peril and risk."

"Conductors of all freight trains in approaching and passing through all stations, whether the train stops or not, must know that both brakemen are on duty at their posts, and no employe is allowed to absent himself from his duty or assume any other position than the one to which he has been assigned...

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