Brock v. Chicago, R. I. & P. Ry. Co.

Decision Date25 November 1924
Docket NumberNo. 23852.,23852.
Citation266 S.W. 691
PartiesBROCK v. CHICAGO, R. I. & P. RY. CO.<SMALL><SUP>*</SUP></SMALL>
CourtMissouri Supreme Court

Appeal from Circuit Court, Clinton County; A. M. Tibbels, Judge.

Action by Lester Brock against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Luther Burns, of Topeka, Kan., and John E. Dolman, of St. Joseph, for appellant. R. H. Musser, of Plattsburg, and Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondent.

LINDSAY, C.

This suit was brought by plaintiff under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages for injuries sustained by him through being struck by a motor car operated by a section crew of the defendant, and alleged to have been operated negligently. The injury occurred on August 12, 1920, at Maple Hill, in Kansas. The plaintiff was and is a resident of Missouri. At that time the defendant was engaged in repairing the telegraph line located upon the right of way of its railroad running through Maple Hill. Along with the telegraph wires, 15 in all, composing said line, there was a telephone wire. Both the telephone wire and the telegraph wires were used by the defendant in controlling the operation of its freight and passenger trains in interstate, as well as intrastate, traffic. The repair work was carried on in such a manner as not to interrupt the cotemporaneous use of the wires in the control of train operations.

The plaintiff had been in the employment of defendant for about three weeks. His duties consisted in digging holes and in assisting in the setting or resetting of poles, the adjustment of cross-arms, and the like work. The work of repairing the line was in charge of a foreman, and there were, in all, about 16 men who constituted what was designated as the telegraph repair crew, and were engaged in this repair work. These men slept and took their meals in cars provided by the defendant. The tracks of the defendant at Maple Hill run almost east and west. The bunk cars and other cars appurtenant to the uses of the telegraph repair crew stood upon the southermost track, spoken of as the stock yards track. Near and north of this was a passing track. North of this passing or middle track was the main line track. The depot is north of these tracks, and was about 90 or 100 feet east of the bunk car used by plaintiff and others of the crew to which he belonged. At a point about 150 feet west of where the bunk cars stood a public road crossed the railroad tracks. There were five bunk cars and eight other cars, including a water tank car, and cars for tools and food supplies for this crew of men. All of the town of Maple Hill was north of the tracks; none of it to the south. The plaintiff worked 8 hours a day at 75 cents an hour. His work began at 8 o'clock in the forenoon, continued until noon, was resumed at 1 o'clock, and ended at 5 o'clock in the afternoon. His injuries were received during the noon hour. He had returned from his work to the bunk car occupied by him and five other men for the purpose of eating his noonday meal in the car adjacent, provided by the defendant for that purpose. Finding that the water in his car had been used up by the others, the plaintiff took a bucket and started to bring water from a well, which was north of the tracks of defendant, and in a northwest direction from his bunk car. As he descended from the bunk car he was facing south, his back toward the middle or passing track. It was shown that the door in use was on the north side of the car; that there were no steps leading down, but there was a hand hold. at the side of the door, and about 30 inches below the base of the opening there was an iron stirrup as a support for the foot in ascending or descending. At about this time a freight train was approaching rapidly, east bound, upon the main line track. The plaintiff on reaching the ground, turned westward a few steps, and stepped upon the middle or passing track, facing northwest, and, pausing to look and await the passing of the freight train, he was struck by a Mudge motor car operated by the section crew of defendant, which was moving west upon the middle or passing track.

The testimony of the motorman of the Mudge motor car was that he saw the plain tiff with the bucket on his arm, or in his hand, as he was thus descending from the door of the bunk car to the ground and as he let loose of the handhold" and faced toward the north, but did not see plaintiff after that until the motor car struck him. There was testimony that the motorman thought, Or said he thought, the plaintiff would look back, or he would have stopped the motor car.

It appears that in addition to a crew of section men at Maple Hill the defendant had there also a crew of signal men. On that morning the signal crew had been at work at a point east of Maple Hill, and the section crew at work at a point west of the town, but before noon the foreman of the section crew had sent a part of his men with the motor car to assist the signal crew, and it was upon the return of the motor car with men from both crews, a little after 12 o'clock of that day, when the plaintiff's injury occurred. The plaintiff had a verdict for $20,000. Other facts and details of the testimony pertinent to the issues made will be noticed later as occasion requires.

The petition is long. The allegations set forth very fully the nature of plaintiff's employment, the conditions of the work in which he was engaged, the circumstances under which plaintiff and others were accustomed to cross the tracks to bring water for their use and otherwise, and the physical Objects located or moving in and about the scene of the injury. It need not be set out, nor is extensive reference to it necessary. The particular allegations of negligence were: That the Mudge motor car was run at an excessive and negligent rate of speed under the circumstances (along the track near the bunk cars); that it was negligence to run said motor car at that time on the passing track, between the bunk cars, and the rapidly moving freight train on the main track; that defendant's employees on the motor car negligently failed to exercise reasonable care to discover plaintiff on the passing track, and negligently failed to exercise reasonable care for his safety after discovering him; that defendant negligently failed to provide and maintain for plaintiff a reasonably safe place to work, and a reasonably safe method of egress and ingress from and to the bunk car; that defendant negligently failed to give any notice, warning, or signal of the approach or movement of the motor car. The defendant pleaded the provisions of the Workmen's Compensation Act of the state of Kansas (R. S. 44 — 501-44 — 547), and certain facts alleged as bringing the case within the provisions of the Kansas act, and as not within the federal act, pleaded the carelessness and negligence of plaintiff as one of the direct and sole contributing causes to his injury, and also a general denial.

The defendant assigns as errors: (1) The refusal of the court to give its instruction in the nature of a demurrer to the evidence, offered at the close of the case; (2) refusal of the court to give defendant's offered instruction No. 4, which would have told the jury that, if plaintiff, at the time of his injury, was not engaged in performing any duty owing by him in his general employment, but was engaged in going after water for his own personal use, the verdict, must be for defendant; (3) a contention within the refused peremptory instruction, that there was no duty resting upon defendant to look out for linemen, including plaintiff, upon its tracks, and this also upon the theory that there was no evidence that plaintiff was actually seen by defendant's servants in time to stop the motor car, and that plaintiff knew the conditions existing, and assumed the risk of being struck and injured; (4) that the verdict is grossly excessive, and the result of passion and prejudice.

From the foregoing, and from express statements made in the reply brief of defendant, numerous questions have been eliminated as live questions necessary to be considered. It is conceded that the question of contributory negligence of plaintiff is not raised here and is settled by the Verdict. No serious question is raised as to the interstate character of plaintiff's employment while repairing defendant's line which was used in the movement of both interstate and intrastate trains. Beyond that, the question of defendant's negligence in operating its motor car is not raised, nor question of failure to furnish plaintiff a safe place in which to seep and to eat. The paramount and interesting question raised is whether the plaintiff at the particular time when he received his injuries bore such relation to the defendant, and to the work in which he was employed, as brought his case within the terms of the federal Employers' Liability Act. Further, if it be granted that plaintiff, at the time of his injury, bore the required relation to interstate traffic, yet defendant urges that he assumed the risks (known to him) of the use of the bunk car, and of the accustomed daily movements of the Mudge motor car.

The primary question, then, is the relation of the plaintiff and of what he was doing, at the time he was injured, to the defendant, and to the work he was employed to do by the defendant. The bunk cars wherein the plaintiff and others slept belonged to defendant, and were on the property of defendant, and were the center of the movements of these men. The purpose of furnishing these cars, and having the men sleep and eat in them, was "to keep the men all together, so they would be there handy to the work." The cars, food, and supplies generally were furnished by the defendant, or under its instructions and management. The men paid for their meals. The occasion and the...

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