Burns v. Kansas City, Ft. S. & M. Ry. Co.

Citation31 S.W. 347,129 Mo. 41
CourtUnited States State Supreme Court of Missouri
Decision Date04 June 1895
PartiesBURNS v. KANSAS CITY, FT. S. & M. RY. CO.

2. Defendant railroad owned an open elevated track, upon which cars were run for the purpose of transferring grain to other cars on the track below, such work being done in the daytime by an independent contractor, and it was the custom for defendant's trainmen to remove at night the cars so unloaded. Plaintiff, a foreman of defendant, while engaged with a crew in removing such cars, stepped on a grain door lying on a walk beside the track, and was injured. Other crews were employed in doing the same kind of work, and other railroads had tracks adjoining defendant's. No one had ever seen a grain door on the way before. This one had no mark on it, and it was not shown how it came there. Held, that an instruction that the jury might find that the door was placed on the way by the contractor or his employés was error.

3. A railroad company is bound to keep its road, track, and yards in a reasonably safe condition for its employés, and it cannot avoid liability by letting out a part of its duties as a common carrier to an independent contractor.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Michael Burns against the Kansas City, Ft. Scott & Memphis Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for personal injuries sustained by the plaintiff while in defendant's employ as foreman of a switching crew in its yards at Kansas City, Mo. The petition alleged plaintiff was hurt by the negligence of defendant, in two respects: First, it required him to work in a dangerous place, to wit, on a certain inclined track; and, second, by carelessly permitting a grain door from a car to be left lying on said elevated incline, on which he stepped in the dark, and was thereby thrown to the ground, and his leg broken. The first charge of negligence was withdrawn from the jury by the court, and, as plaintiff is not appealing, will require but little consideration. The answer was a general denial and contributory negligence. The following facts appeared in evidence: On February 10, 1891, plaintiff was employed by defendant as foreman of a switching crew which worked in its yards at night. He was 36 years old, an experienced switchman, and had been in railroad service of various kinds for 18 years, and had worked for many years in these same yards. Plaintiff was hurt by stepping upon what is called a "grain door," which had been left or placed by some one upon an elevated track belonging to defendant, and was thereby thrown to the ground, and his leg broken. This elevated track was used for transferring grain from one train to another. It appeared that when grain consigned to points beyond Kansas City was delivered to the defendant company at that place in cars that were in bad order, so that it was not safe to send them forward, or in cars belonging to companies which did not allow them to go further south than Kansas City, it was necessary to transfer the grain into other cars that were in good order, and would be allowed by the companies owning them to carry the grain to destination. To facilitate this transfer, the elevated track was constructed. The blue print and photographs filed as exhibits herewith give its appearance, and how it was constructed. It rose gradually from the level of defendant's yards, running therefrom northwardly, first on an earth embankment 90 feet long, and then on trestlework 204 feet, which brought it to a level of about 6 feet above the ground on the easterly side. It then ran at this elevation on a trestle a distance of 600 feet, where at its north end it stopped abruptly with a post or rail to prevent cars running off. Thus it will be seen cars left upon the elevated track were 6 feet above the cars placed on the track located on the surface of the ground just east of the elevated track, and marked on the print in evidence "Track No. 40." The practice was to shove up on this elevated track cars loaded with grain, which were to be transferred, and leave them upon the level portion thereof. Then empty cars, into which the grain was to be put, were run in on track No. 40; and the grain was transferred by running a kind of a trough or chute from the door of the upper car into the door of the opposite lower car, making an angle of about 45 degrees. Then, upon opening the door of the loaded car, most of the grain would run into the lower car, and the rest of it was easily shoveled from the ends of the loaded car into the chute. In the loading and unloading of bulk grain there was sometimes used what are called in the testimony "grain doors," by which is meant two or three boards fastened together with cleats or in some similar way, made to be placed inside of the regular door of the car (which is not always tight enough to hold in grain, and which, sliding on wheels at the top, as it is opened, lets all the grain run out), for the purpose of holding the grain in when the outside door is opened. These grain doors only came up far enough to reach above the top of the grain in the car, and did not cover the whole door opening. This work of transferring grain was done in the daytime, and it was the practice to pull the cars that had been emptied off this elevated track during the night, different crews doing the work (plaintiff's crew was not there the night before he was hurt), and to put in their place other loaded cars from which the grain was to be transferred the next day. It often became necessary in transferring the grain for the men who did this work to separate the cars, either the loaded or the empty ones, and move them a few inches, in order to bring the doors of the cars on the upper and lower track, from and to which the grain was to be transferred, opposite each other. When this was done, the cars on the upper track which had been so moved had to be coupled together by the switching crew designated to pull them off. It was while coupling these empty cars together, preparatory to pulling them off the elevated track, that the plaintiff fell from the walk running alongside this track. This elevated track was, as has been stated, built on a trestle, there being two rows of piles driven in the ground lengthwise of the track, and directly under the rails thereof, and heavy, short stringers placed at right angles to the track across those piles. Other long stringers were placed parallel with and directly under the rails, and across the stringers first referred to. Long ties were then placed across these long stringers at right angles to them, and the rails laid on these ties. At the easterly end of these ties, — that is, on the side towards the lower track No. 40, — and resting upon the ties, was a walk made of two planks, each 12 inches wide and 2 inches thick, placed an inch apart, and running parallel with the rails. The outside of this walk was 6 feet from the center of the track. There was some slight difference in the testimony as to the elevation of the walk above the ground, and as to its width; but, since the charge of negligence in furnishing this kind of structure to work on was withdrawn from the consideration of the jury by the court, these differences, perhaps, are of no consequence. The testimony showed that tracks similar to the one described and erected for the same or similar purposes are common on railroads, and such tracks are also constructed for reaching coal shafts. This work of transferring grain, to which reference has been made, was done by an independent contractor, one R. G. Hearne. Defendant company had an agreement with him by which it paid him a certain price per car for transferring any freight from car to car that it might wish to have transferred, but the principal part of his work was the transferring grain made necessary by the reasons heretofore stated. Hearne had complete control of the manner of doing the work, hired the men to do it, paid them, discharged them, and arranged for the details of the manner of doing the work. The railroad company had nothing to do with the matter, except to pay Hearne the price agreed on per car for transferring the grain or other freight that it might be necessary to transfer from car to car. It had nothing to say about the hiring, discharging or paying of any of Hearne's men, nor about the manner in which the work was done. Plaintiff knew all about this elevated...

To continue reading

Request your trial
49 cases
  • George v. St. Louis & S. F. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 2, 1910
    ......city of St. Louis, south through the village of Commerce, Scott county, Mo., into the state of Arkansas. ...Bailey v. Kansas City, 189 Mo. 503, 87 S. W. 1182. .         5. This brings us to the consideration of the ......
  • Messing v. Judge & Dolph Drug Co.
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1929
    ......1. . May 18, 1929. . [18 S.W.2d 409] .         Appeal from Circuit Court of City" of St. Louis. — Hon. William H. Killoren, Judge. .         AFFIRMED. .        \xC2"...571, an original proceeding in certiorari wherein this court quashed the record of the Kansas City Court of Appeals in a negligence case ruled by said Court of Appeals. The Court of Appeals, in ......
  • Brackett v. Masonry & Contracting Co., 29226.
    • United States
    • United States State Supreme Court of Missouri
    • October 13, 1930
    ....... October 13, 1930. .         Appeal from Circuit Court of City" of St. Louis. — Hon. Frank Landwehr, Judge. . [32 S.W.2d 289] .         AFFIRMED. . \xC2"..., then engaged in the performance of its contract to construct the concrete work of the Kansas City Reservoir. At the time of the accident the work in progress was the building of the south wall ......
  • Settle v. Baldwin, 39524.
    • United States
    • United States State Supreme Court of Missouri
    • July 8, 1946
    ......& H.R. Co., 141 N.Y.S. 879; Doering v. St. Louis & O'Fallon Ry. Co., 63 S.W. (2d) 450; Burns v. K.C., Ft. Smith & Memphis Ry. Co., 129 Mo. 41, 31 S.W. 347; Erie Co. v. Murphy, 108 F. (2d) 817; ... 196 S.W.2d 301 . Kansas City), Jackson County. Other icing facilities were used by ART at Southwest Junction (in Kansas ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT