Francis v. The Kansas City, St. Joseph & Council Bluffs Railroad Company

• Decision Date: 31 May 1892
• Citation: 19 S.W. 935,110 Mo. 387
• Parties: Francis v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant
• Court: Missouri Supreme Court

19 S.W. 935

110 Mo. 387

Francis v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri, Second Division

May 31, 1892

Appeal from Buchanan Circuit Court. -- Hon. Oliver M. Spencer Judge.

Reversed and remanded.

C. A Mosman for appellant.

(1) This is not a question of contributory negligence at all. Wherever a violation of the rules of the master for the conduct of his business is a producing cause of injury to the servant, that violation is a complete defense to the master regardless of whether the violation was in itself negligent. The servant cannot incur a risk, consequent upon a violation of the master's orders, on the master's responsibility. He can only do so at his own risk. Gardner v. Railroad, 58 Mich. 584; Railroad v. Ryan, 7 S.W. 83; Pilkington v. Railroad, 7 S.W. 805; Railroad v. Whitcomb, 111 Ind. 212; Lockwood v. Railroad, 55 Wis. 50; Woolsey v. Railroad, 33 Oh. St. 227; Deeds v. Railroad, 74 Iowa 54; Durgin v. Munson, 9 Allen, 396; Shanny v. Androscoggin Mills, 66 Me. 420; Railroad v. Husson, 101 Pa. St. 1; Chambers v. Railroad, 94 N.C. 475. (2) The court should have sustained the demurrer to the evidence, because of the contributory negligence of the deceased. (3) The record fails to disclose that the injury of Francis was due in any degree to the incompetency of the engineer. Roul v. Railroad, 11 S.E. 558; Kersey's Case, 79 Mo. 362; Corcoran's Case, 16 S.W. 411; Hudson's Case, 101 Mo. 13; Bell v. Railroad, 86 Mo. 599; Dowell v. Railroad, 61 Miss. 691. (4) The court committed error in giving and refusing instructions.

James W. Boyd and Benjamin Phillip for respondent.

(1) The evidence shows that plaintiff's husband, Charles Francis, was run over and killed by a locomotive or engine belonging to defendant, in charge of and being operated by the defendant's servant, Preston; that said Preston was incompetent, unskilful, unfit and not capable of handling or running said engine; that on account of said Preston's incompetency and unskilfulness and inability to handle and run said engine said Francis was run over and killed; and that such incompetency and unfitness were known to the defendant for such a length of time before the accident, that in the exercise of ordinary care and diligence the defendant could have discharged said incompetent and unfit engineer. Under such circumstances the plaintiff being the widow of said Francis can recover in this action. Rolling Stock Co. v. Wilder, 116 Ill. 100; Harper v. Railroad, 47 Mo. 567; Connor v. Railroad, 59 Mo. 285; Gormley v. Iron Works, 61 Mo. 492; Kersey v. Railroad, 79 Mo. 362; Neilson v. Railroad, 85 Mo. 599; Railroad v. Meyers, 65 Tex. 110; Railroad v. Ruby, 38 Ind. 294; Gillman v. Railroad, 13 Allen (Mass.) 433. (2) Notice of the incompetency and unfitness and inability of said Preston to handle and run said engine, and of his negligence and carelessness in handling and operating the same given to Cummings, who had authority and power to control, govern, direct and even remove said Preston from his engine, was notice to the defendant. McDermott v. Railroad, 73 Mo. 516; Verry v. Co., 47 Iowa 549; Huntington v. Decker, 82 Pa. St. 123; Dowling v. Gerard, 74 Mo. 13; Moore v. Railroad, 85 Mo. 588. (3) There is no evidence in this case even tending to show that Francis had any knowledge of the notice mentioned in the evidence and shown in appellant's abstract at page 64. Still, whether he had any such knowledge or not was submitted to the jury on the instructions asked by the appellant, and the jury found that Francis had no knowledge of said notice. (4) Under the evidence the court could not declare as a matter of law, and as is contended by the appellant, that Francis was guilty of such contributory negligence in standing in front of the engine while it was moving towards him, as would bar a recovery by his widow in this case. Where, from the undisputed facts, different inferences can be fairly drawn, the question of negligence should be submitted to the jury. Huber v. Railroad, 92 Mo. 450; Mauerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653; Boland v. City, 32 Mo.App. 8; Corrister v. Railroad, 25 Mo.App. 619; Tabler v. Railroad, 93 Mo. 79; Kidings v. Railroad, 33 Mo.App. 527; Barry v. Railroad, 98 Mo. 62; Kinney v. City, 35 Mo.App. 97. (5) The court did not commit error in giving plaintiff's first instruction. Although the relation of the plaintiff to Charles Francis was not admitted, still the undisputed evidence is that the plaintiff was the wife of Charles Francis. It is not error to assume in an instruction facts to be true which are undisputed. Bank v. Hatch, 98 Mo. 376; Herriman v. Railroad, 27 Mo. 435; Walker v. City of Kansas, 99 Mo. 647; State v. Moore, 101 Mo. 316; Rice v. McFarland, 41 Mo.App. 489.

Justus W. Brockett, also, for respondent.

OPINION

Macfarlane, J.

Action for damages on account of the death of plaintiff's husband, Charles Francis, by the alleged negligence of defendant. Deceased, plaintiff's husband, was in the employ of defendant in the capacity of a switchman in its yards at St. Joseph. While in the performance of his duties as switchman, on the night of March 27, 1888, he was struck and killed by the switch engine with which he was working.

The charge of negligence, made in the petition, consisted in the employment of an incompetent and unskillful engineer, who was ignorant of the signals in use in the yards, by which the switching crew was governed; in retaining such engineer in its service after notice of such incompetency, unskillfulness and ignorance, and by and through the incompetency, negligence, unskillfulness, and disregard of signals by said engineer, the collision and death was occasioned.

The answer was a general denial, a plea that the injuries and consequent death of Charles Francis was the result of one of the usual and ordinary perils of his employment in which he was engaged, and which he assumed, and a plea of contributory negligence.

The yards of defendant at St. Joseph extend north and south. At the extreme north end of the yards the passenger tracks are on the east and the freight tracks on the west. These tracks are connected by a transfer track used for transferring cars from one track to the other. A switch engine differs from a road engine in having no pilot or "cow-catcher," but instead a board is extended across in front, which is used by switchmen to stand on while the engine is moving, and while coupling cars to the front end of the engine. The engineer, fireman and three switchmen constituted the crew, Charles Francis being one of the switchmen. The engine and crew had been at work in the yard, and moved up north for the purpose of transferring the engine from the passenger to the freight tracks. The duty of deceased required him to open the switch from the passenger to the transfer track. The engine moved backward north, deceased riding on it, until it passed the switch far enough to clear it, and stopped. Deceased got off the engine and threw the switch, the engine then moved forward south over the switch onto the transfer track, and, a few feet south of the switch, struck deceased, while occupying a position between the rails, near the west one, ran over and crushed his legs, from which he afterwards died. These facts are practically undisputed. The controverted facts relate to the signals given the engineer at this point, and the manner in which they were responded to, and will be considered in discussing the legal questions involved.

At the time of this accident, and for some time previous, a strike among the engineers of defendant existed, and many of them had left the road. There was also discontent among the switchmen, though up to that time no actual strike had occurred. The engineer, of whom complaint was made, was employed by defendant two days prior to the accident, and this was the second night he had worked in the yards, deceased also working with him the first night. There is no evidence tending to prove a want of proper care on the part of defendant in its employment of the engineer, and in its examinations and tests of his competency. There was evidence tending to prove that the engineer was not familiar with the signals in use in defendant's yards, or was either negligent of their observance, or incompetent to respond to them promptly and carefully, and that defendant had notice of these deficiencies before the injuries to deceased.

Defendant had a rule in force at the time of this accident which forbade switchmen and others from jumping on engines, while in motion, from the middle of the track. That Charles Francis stood between the rails of the track as the engine approached him for the purpose of stepping upon the footboard in front, is undisputed. The evidence tended to prove that Francis signaled the engine forward; that when it got very near him it checked its speed for a moment, as Francis undertook to step upon the board, and immediately spurted forward causing him to lose his footing, and the wheels to pass over him.

Defendant insists that the judgment in this case should be reversed on any one of two principal grounds: First. That the injury was caused by disobedience of a positive rule adopted for the safety of switchmen. Second. That the injury was caused by the negligence of deceased in standing between the rails in front of a moving engine, and attempting to get upon it from that position. These propositions were both raised under the refusal of the court to direct a verdict for defendant under all the evidence. Other minor questions are also insisted upon.

I. The rule referred to in the statement was as follows:

"St Joseph, Mo., May 12, 1887.

"To Foremen, Switchmen and others:

"It has...