State ex rel. Lusk v. Ellison
| Citation | 196 S.W. 1088,271 Mo. 463 |
| Parties | THE STATE ex rel. LUSK et al., Receivers of St. Louis & San Francisco Railroad Company, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals |
| Decision Date | 12 July 1917 |
| Court | United States State Supreme Court of Missouri |
Record quashed.
W. F Evans, Cowherd, Ingraham & Durham and Hale Houts for relators.
(1) The decision of the Court of Appeals in holding that the relators owed plaintiff, a trackman, the duty to watch out for his safety upon the tracks and particularly upon the east yard lead, is in conflict with all previous decisions of this court defining the duty owed by railroad companies to trackmen, and more particularly with the decision of this court in the cases of Cahill v. Railroad, 205 Mo 393; Degonia v. Railroad, 224 Mo. 564; Nivert v Railroad, 232 Mo. 626; Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257. (2) The decision of the Court of Appeals in holding that the alleged failure of the engineer to keep a lookout for plaintiff was the proximate cause of his being injured on the other track by a box car coming in the opposite direction is in conflict with all of the previous decisions of this court on the question of proximate cause and more particularly with the decisions in these cases: Ralyea v. Railroad, 112 Mo. 86; Butz v. Cavanaugh, 137 Mo. 503; Coin v Lounge Co., 222 Mo. 488; Brewing Co. v. Talbot, 141 Mo. 674. (3) The decision of the Court of Appeals in refusing to hold that plaintiff's own negligence was the sole cause of his injury is in conflict with the last previous decision of this court in the case of Coin v. Lounge Co., 222 Mo. 488.
Calvin & Rea and George C. Coggburn for respondents.
(1) The recovery had, and so far upheld, in this cause, is predicated upon the theory that the negligent failure of the engineer to observe and obey the signal being given him by respondent, became, and was, the proximate cause of respondent's injury; and the cases cited by relators, holding that a railroad company owes no duty to warn trackmen of the approach of its trains, are not applicable; and, moreover, there is no conflict as between the decisions as rendered in those cases and the decision as rendered in the instant case. (2) The Kansas City Court of Appeads, in rendering its decision in this cause, was without the guidance of any decision of this court, inasmuch as this court has never dealt with the precise question as here involved. And this court will not, in this proceeding, quash the decision as rendered by the Kansas City Court of Appeals, seeing that it is not a decision rendered in defiance of the supremacy of this court, and that the Kansas City Court of Appeals becomes, and is, a court of last resort in cases within its appellate jurisdiction. State ex rel. v. Moore, 84 Mo.App. 11; State ex rel. v. Valliant, 123 Mo. 524; State ex rel. v. Walbridge, 116 Mo. 656; Summerrow v. Johnson, 56 Ark. 85; Cushing v. Gay, 23 Me. 9. (3) This court will not deal with the question as to whether or not the negligent failure of the engineer to heed the warning signal, became, and was, the proximate cause of respondent's being injured, so long as the decision under consideration is found not to be in conflict with the rulings of this court upon a similar or identical state of facts as the instant case presents. Cases supra. (4) Under all the testimony adduced upon the trial of this cause, it was a proper question for the jury to determine whether or not the negligent failure of the engineer to heed the warning signal became, and was, the proximate cause of the injury in question. Employers' Liability Act (Act April 28, 1908), c. 149, U. S. Comp. Supp. 1911, p. 1323; Witham v. Delano, 184 Mo.App. 677; Hardwick v. Railroad, 181 Mo.App. 156; Cent. Dig. (Master & Servant), 671; Dec. Dig. (Master & Servant), sec. 228; Thornton's Federal Employers' Liability Act (3 Ed.), sec. 72; Penn Ry. Co. v. Cole, 214 F. 948; Ellis v. Railroad, 155 Ky. 745; Railroad v. Wene, 202 F. 887; Toby v. Railroad, 33 L. R. A. (Iowa) 501; Railroad v. Wignan, 56 Ill. 489; Railroad v. Neibel, 214 F. 953; Knapp v. Railroad, 153 N.W. 848; Donselliod v. Railroad, 94 A. (N. J.) 804; McMarshall v. Railroad, 80 Iowa 757. (5) It was also a proper question for the jury to determine whether or not respondent's injury was directly due to relators' negligence; whether or not respondent was guilty of contributory negligence; and, to consider and compare the negligence and contributory negligence of the respective parties, as touching liability for the injury which respondent sustained. Hardwick v. Railroad, 181 Mo. 677; Schlemmer v. Railroad, 205 U.S. 1; Penkey v. Railroad, 180 Mo.App. 202; Ellis v. Railroad, 155 Ky. 745; Louisville v. Wene, 202 F. 887; Railroad v. Cole, 214 F. 948; Railroad v. Beauregard, 36 S.Ct. 126. (6) In view of all the facts as disclosed by this record, and under any reasonable view which may be taken with reference thereto, the question of appellants' negligence and respondent's contributory negligence, as well as all other questions upon the material issues in this cause, were properly submitted to the jury, and under appropriate instructions; and, no error materially affecting the merits of this action appearing, the finding thereupon should remain conclusive. Sec. 2082, R. S. 1909; Barkley v. Association, 153 Mo. 300; Jones v. Railway, 178 Mo. 528; Peterson v. Transit Co., 199 Mo. 331; Mockowik v. Railroad, 196 Mo. 550; Stump v. Kopp, 201 Mo. 412; Berry v. Railroad, 214 Mo. 593; Mann v. Doerr, 222 Mo. 1; Hannon v. Transit Co., 102 Mo.App. 216; Woody v. Railroad, 104 Mo.App. 678; Railroad v. Railroad, 110 Mo.App. 300; Caplain v. Transit Co., 114 Mo.App. 256; Cross v. Gould, 131 Mo.App. 585.
OPINION
In Banc.
Certiorari.
Certiorari to the Kansas City Court of Appeals, bringing up the judgment and opinion of that court in the case of S. B. Brightwell (Plaintiff), Respondent, v. James W. Lusk et al., Receivers (Defendants), Appellants. Brightwell's action was one for personal injuries, and was brought under the Federal Employers' Liability Act. Defendants were the receivers of the St. Louis and San Francisco Railroad Company. Plaintiff was foreman of a crew repairing tracks in the switch yard of the said railway in Kansas City, Mo. Plaintiff and his crew of three men were working on what was known as the "Middle Yard Lead" in those switch yards. They had replaced a broken rail and were thereafter engaged in raising the joints and filling up the low places with cinders. Jacks were used to raise these joints and whilst the track was thus raised by the jacks it was not safe to run cars and engines over them. When a certain switch crew, with their engine and cars, attempted to pass over this track, plaintiff warned or signaled them, and they waited until the jacks were removed and then ran on over the rails where the plaintiff's crew was at work. The same thing occurred a second time, and when the switch crew started to pass over this track the third time, plaintiff says that the engineer was looking toward the back end of his train, and not toward the front end, and that he, in attempting to signal the engineer, left his track and going to one side thereof in order to give the signal of warning was struck by a car coming from the opposite direction on what was called the "East Yard Lead" track. He says these tracks (Middle Yard Lead, and East Yard Lead) were eight feet apart. Defendants' evidence makes them ten to fourteen feet apart. At eight feet apart, there was a clear space of four feet between passing trains.
The petition charges as negligence (1) the failure of the engineer running on the "Middle Yard Lead" to keep a lookout for plaintiff's signals, and (2) the running of the car on the "East Yard Lead" "without having some person thereon, and in charge thereof, aforesaid, to warn persons of its approach, or to stop same before allowing it to collide with persons who happened to be on the track."
In the trial court the case was submitted to the jury on the negligence of the engineer only. The latter alleged negligent running of the car on the East Lead Track was eliminated.
The plaintiff had judgment for $ 5,000, and the Kansas City Court of Appeals affirmed this judgment, and our writ was directed to this judgment of affirmance. Other details can best be stated in the course of the opinion.
I. As stated, the Court of Appeals held that the negligence of the engineer was shown by the facts, and that such negligence was the proximate cause of the injury. The relators here contend that this holding contravenes our rule as announced in a line of cases of which Degonia v. Railroad Co., 224 Mo. 564; Cahill v. Railroad Co., 205 Mo. 393; Nivert v. Railroad Co., 232 Mo. 626; Rashall v. Railroad Co., 249 Mo. 509, and Gabal v. Railway Co., 251 Mo. 257, are samples. Recollecting that the question passed upon is the alleged negligence of the engineer in not looking forward for a signal from plaintiff, let us compare the ruling with the doctrine of our cases cited, supra. Those cases hold (1) that trackmen are under a duty to look out for their own safety; (2) that an engineer is not required to keep a lookout for trackmen in the ordinary operation of trains; (3) that the engineer has the right to assume that trackmen, although in a place of danger, will in the exercise of their duty to protect themselves remove themselves from such place of danger, before the train reaches them, and (4) that it is only after the engineer discovers that the trackman is oblivious to his danger and is not going to retire to a safe place, that the engineer is obliged to take steps to protect such trackman.
It will be noted that these cases also fix the liability of the master for the...
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