Swadley v. Missouri Pac. Ry. Co.

• Decision Date: 27 November 1893
• Citation: 118 Mo. 268,24 S.W. 140
• Parties: SWADLEY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

24 S.W. 140

118 Mo. 268

SWADLEY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1893.

INJURY TO EMPLOYE — FELLOW SERVANTS — DEFECTIVE TRACK — EVIDENCE.

1. A track repairer going on the right of way with the foreman and other members of the gang, after work hours, to take a train for the next working place, is not a trespasser.

2. Where, through a negligently defective track, a car jumps the track, and injures a track repairer rightfully on the right of way, the railroad company is liable.

3. Knowledge by a track repairer that the track is defective, and his not getting so far away from the track that a car jumping the track would not strike him do not, as a matter of law, show contributory negligence.

4. Evidence of the defective condition of the ties within a reasonable time before and after the accident was competent.

Appeal from circuit court, Moniteau county; E. L. Edwards, Judge.

Action by John Swadley, by his next friend, against the Missouri Pacific Railway Company, to recover for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

H. S. Priest and Wm. S. Shirk, for appellant. W. M. Williams, J. H. Johnston, and James E. Hazell, for respondent.

BLACK, C. J.

The plaintiff, a young man under the age of 21 years, prosecutes this suit by his next friend to recover damages for personal injuries. There is no dispute as to the following facts: The plaintiff was one of a gang of six or eight men engaged in repairing the track of the defendant's branch road from Tipton to Boonville, all under the control of David Reed, their foreman. On Saturday, the day of the accident, they were engaged in loading old rails on what is called the "work train." They ceased work between 5 and 6 o'clock in the afternoon, a little earlier than usual, and went to their boarding house, which was close to what is called the "McAllister Crossing," for their supper. In the mean time the work train went north to Boonville, to clear the track for a regular passenger and freight train, which was known to be about two hours behind its usual time. After supper, Reed and his gang got their valises, intending to get upon the work train when it came back and go to Tipton, and from there to California, on the main line, where they were to commence work on Monday morning. They all concluded to walk from the McAllister crossing south to a station called "Speed," and there take the work train. While walking along the track they saw the passenger and freight train coming from the south, and they all stepped from the track to the right of way, some going on one side of the track, and some on the other. As the train was passing them, some of the cars were thrown from the track onto the plaintiff and others, killing at least two of the men, and injuring the plaintiff. There was a sharp curve at this point.

The plaintiff founds his action on these averments, namely: That he was on the right of way by order of his foreman; that the defendant negligently suffered its roadbed and track thereon to become unsafe and dangerous at the point of the accident, in these respects: the ties were decayed and rotten, the rails were badly worn and not properly fastened to the ties, and the outer rail of the curve did not have sufficient elevation; that the passenger and freight train was run and operated at a dangerous and reckless rate of speed; and that the cars were thrown from the track and upon plaintiff because of the unsafe condition of the track, and dangerous rate of speed of the freight and passenger train. The evidence of the plaintiff is very strong to the effect that Reed ordered his men to go from the McAllister crossing to Speed, and pick up the tools as they went along, and take the work train at that place for California, and that they walked along the track as they did because of the order of Reed, their foreman. On the other hand, Reed says he told his men they would get their supper and wait at the crossing for the train, and this was the order he had from the division superintendent. He says, when they got to the crossing, he or some of the men suggested that they walk down to Speed and get on the train at that place, and accordingly they all started for Speed, walking on the track. Says he was not on duty at that time, it being after 6 o'clock. There is much evidence tending to show that the ties were from two to two and a half feet apart; that some of them were of the usual size, and others smaller; that many of them were rotten, so they would not hold a spike; and that the lines of the track varied from right to left, and the rails were not level on top. Other evidence shows that the plaintiff and his gang replaced the inner rail of the curve with steel rails a few days — less than a week — before the accident. The steel rails were rails which had been used on the main track. The outside rail of the curve was steel, and had been down a much longer time. The defendant's evidence is that a gang of men went over this track three or four weeks before the accident, and put in some new ties; that, while most of the ties had been in the ground some years, they were reasonably sound. In short, the defendant's evidence, and some of that produced by the plaintiff, tends to show that this roadbed and track was in as good a condition as branch roads are usually kept. According to most of the witnesses, the train was going from 23 to 30 miles per hour, and the evidence of those in charge of it is that the same train had been run that fast over this part of the road before the accident, and has been run as fast since then. One witness, who was a passenger, says the train was running as fast as 35 miles per hour, and another one says it was running twice as fast as he ever saw it run before, and that one of the freight cars was thrown 30 or 40 feet from...