Francis v. Kansas City, St. J. & C. B. R. Co.

• Decision Date: 18 December 1894
• Court: Missouri Supreme Court
• Parties: FRANCIS v. KANSAS CITY, ST. J. & C. B. R. CO.

28 S.W. 842

127 Mo. 658

FRANCIS v. KANSAS CITY, ST. J. & C. B. R. CO.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

ACTION AGAINST RAILROAD COMPANY — INJURY TO SWITCHMAN — CONTRIBUTORY NEGLIGENCE — BOARDING MOVING ENGINE — VIOLATION OF RULES.

1. Railroad switchmen who, in violation of a rule of the company, habitually board moving switch engines from the middle of the track by stepping on the footboard of the engine as it approaches, assume the risks ordinarily incident thereto, but do not assume the danger of injury from incompetency of the engineer.

2. Whether a switchman injured at night while boarding a moving switch engine from the middle of the track, contrary to a rule of the company, was guilty of contributory negligence, is for the jury, where it is shown that the rule was habitually violated with the knowledge of the company, and that deceased had no notice of its existence.

3. Whether an engineer was negligent in sending a switch engine rapidly towards deceased while he was but a few feet in front, intending to step on the footboard, is a question for the jury.

4. The fact that deceased knew that the engineer was incompetent, and had so reported him to the company, is not a bar to a recovery if the danger in working with him was not so obvious that an ordinarily prudent man would refuse to work with him.

5. Where there was evidence that defendant had posted a rule forbidding switchmen and other employés from boarding approaching switch engines from the middle of the track, it was proper to charge that it was defendant's duty to make reasonable rules for the guidance and instruction of its switchmen, and that it was the duty of the switchmen to use due care in acquainting themselves therewith.

6. Defendant cannot complain of an erroneous instruction, given at his request, and in his favor.

7. Evidence that it was usual for employés to get on the footboard of a moving switch engine after the posting of defendant's rule forbidding it, and that defendant's officers knew of such violation of the rule, and failed to reprimand them, is admissible to show that the rule was not in force.

Sherwood, J, dissenting.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Jennie Francis against the Kansas City, St. Joseph & Council Bluffs Railroad Company for the death of plaintiff's husband through negligence of defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

For prior report, see 19 S. W. 935.

Spencer & Mosman, for appellant. Jas. W. Boyd and Benj. Phillip, for respondent.

GANTT, P. J.

This is the second appeal in this cause. The judgment was reversed, and cause remanded, at the April term, 1892. Francis v. Railroad Co., 110 Mo. 387, 19 S. W. 935. The facts tending to show how the accident happened are all substantially stated in the report of the case at that time. Plaintiff's husband, Charles Francis, was a brakeman in the employment of defendant in its yard at St. Joseph. While engaged in his duty as such on the night of March 27, 1888, he was killed by the switch engine with which he was working. The alleged negligence consists in the employment of an incompetent engineer on the engine, and retaining him after notice of his unskillfulness and unfitness. The answer is a general denial, a plea that his death was occasioned by a risk he had assumed in his employment, and contributory negligence. On the former appeal the grounds of reversal were the want of any evidence that defendant knowingly permitted its employés to violate the following rule: "St. Joseph, Mo., May 12, 1887. To Foremen, Switchmen, and Others: It has become quite a practice for the yardmen as well as others to jump on and off switch engines, while they are in motion, by standing in the middle of the track and stepping onto the footboard. This practice must be stopped. Yard and trainmen wishing to get on switch engines must get on from the sides. Parties getting on and off engines while they are in motion do so at their own risk. S. P. Jeffries, Trainmaster. J. R. Hardy, Superintendent," — and the refusal of an instruction that the said rule was binding on deceased. The evidence tended to show that this notice was posted up in the roundhouse and in the yardmaster's office in the middle of the yard. There was a space left at the bottom of the book containing the rule in the yardmaster's office, and all employés who read it were required to append their names. The name of the deceased was not on this book. There was ample evidence on the second trial tending to show that this rule was utterly ignored by the men, with the knowledge of the trainmaster and yardmaster and foreman, and the court gave the instruction which was refused on the first trial, and the rule is not seriously relied on as a defense at this time.

1. Counsel for defendant maintain that the demurrer to the evidence should have been sustained. This claim is based principally upon the fact that deceased was a bright, intelligent man, and an old and experienced switchman; that he had worked all the night previous to his death with Preston, the engineer, and, if Preston was the incompetent engineer that plaintiff claims he was, and had demonstrated it on the previous night, then Mr. Francis knew it, and he was guilty of recklessness in attempting to board the engine with such an engineer in charge; in a word, that a man of ordinary prudence and care would not have undertaken to get on the engine from between the rails, as Mr. Francis did, with such an engineer in charge of it. The evidence shows that at the time of this accident, and for a month previous, the engineers of the defendant company were on a strike; that two days previous to this accident the defendant had employed Preston, the engineer in charge of the engine which killed Francis. This was the second night Preston had worked in the yards. Francis had worked with him the first night, and was switching for him the second night, when he was killed. There was much evidence that Preston was unskillful and incompetent; that he did not understand the signals in use in the yard, or was negligent in observing them, or incompetent to respond promptly to them. It was shown that Francis complained of Preston to the yardmaster, Smith, and that Smith reported him to Cummings, the foreman of the roundhouse, on the night or day before Francis was hurt. The evidence of plaintiff tended to show that on the night of March 27, 1888, the crew with which deceased was working consisted of her husband, Shannon, and Dickey. The engine was a switch engine, and had no pilot or cowcatcher, but instead thereof a footboard, which extended across its front, which was made for the switchmen to stand on while the engine was moving, and while coupling cars on the front end of the engine. The engine and crew had been at work in the yards, and had moved north for the purpose of transferring the engine from the passenger to the freight tracks. It was the duty of Francis to open the switch for the passage of the engine to the transfer track. He rode on the engine till it had cleared the switch, and got off and threw the switch. He was then about 25 feet in front of the engine, which was headed south. He signaled the engineer with his lantern to come ahead. The engine moved south over the switch onto the transfer track at a rate of three or four miles an hour, and Francis stood between the rails, near the west rail, waiting to step on the footboard. When it was within a few feet of him, the engineer shut off the steam, and the engine plunged quickly and suddenly forward, and ran over him just as he was attempting to step on it. The engine crushed his legs, and he died in a few hours. On the part of defendant the evidence tended to show that the engine passed north of the cross-over, and stopped. Francis got off the engine, opened the switch, and the engine moved south onto the cross-over track, and stopped. As the engine did this, Francis left the switch stand, and ran south along the east or left-hand side of the engine towards the front end, saying as he passed the engine cab: "G____d d____n it, boys, go ahead. You are too slow!" The left-hand side of the engine is the fireman's side, and Higdon, the fireman, who had his head out of the engine on that side of the cab, communicated the order given by Francis to the engineer. Francis continued to run south on the east side of the engine, which had started up in obedience to his command, until he had gotten a few feet in front of it, when he stopped just inside of the east rail, and stood there awaiting its approach. Higdon says that Francis had his lamp in his right hand, and as the engine came up to him he aimed to grab hold of the hand rail, and step up onto the footboard at the same time; that he missed his footing, the engine struck him, knocked him down, and ran over him. Preston, the engineer, was in his proper place, on the right-hand side of the engine, and from there it was impossible for him to see Mr. Francis in the position which he took near the east rail, on account of the obstructions produced by the upper portion of the boiler, the smokestack, and sand box. The accident happened between 11 and 12 o'clock at night. The evidence shows beyond all question that all the switchmen and the yardmaster were in the constant habit of getting on the switch engine, when moving, by standing in front of it between the rails and stepping on the footboard as it approached. That the defendant's officers in charge of the yards knew this hardly admits of question. Under these circumstances and this well-established custom, the deceased must be held to have assumed the risks ordinarily incident to such dangerous employment, but among those risks is not to be reckoned the danger of injury from an incompetent engineer. The law required of the master ordinary care in the selection of the engineer, and the evidence is overwhelming that he...