Loring v. Kansas City, Fort Scott & Memphis Railroad Company
| Citation | 31 S.W. 6,128 Mo. 349 |
| Parties | Loring v. Kansas City, Fort Scott & Memphis Railroad Company, Appellant |
| Decision Date | 21 May 1895 |
| Court | United States State Supreme Court of Missouri |
Appeal from Texas Circuit Court. -- Hon. C. C. Bland, Judge.
Reversed.
Wallace Pratt, I. P. Dana and Olden & Orr for appellant.
(1) There was a total failure of evidence to prove the case pleaded in the petition. Waldheir v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Jackson v. Hardin, 83 Mo. 175; Harty v. Railroad, 95 Mo. 368. (2) There was no evidence of negligence on the part of the defendant which placed deceased in peril. No rate of speed is negligence per se, in the absence of a statute or ordinance regulating the rate of speed. Maher v Railroad, 64 Mo. 267; Wallace v. Railroad, 74 Mo. 594. (3) The peril and death of deceased were due to his own negligence. (4) There was no evidence that defendant's engineer knew of the peril of deceased or that, if he had known it, he could have prevented the cars running over him. (5) The engineer and other trainmen were under the facts of the case, fellow servants of the deceased and defendant would not be liable for their negligence, even if the record disclosed any.
Livingston & Green for respondent.
(1) Even if there was any negligence on the part of the deceased it was a question for the jury and it was properly submitted to that tribunal. Wilkins v. Railroad, 101 Mo. 93; Webber v. Railroad, 100 Mo. 94; Church v. Railroad, 119 Mo. 203; Dixon v. Railroad, 109 Mo. 413; Petty v. Railroad, 88 Mo. 306; O'Hara v. Railroad, 95 Mo. 662; Stephens v. Railroad, 96 Mo. 213. (2) Defendant's cases state the rule as to trespassers and strangers and not as to employees. See Gessley v. Railroad, 32 Mo.App. 413; 1 Thompson on Negligence, p. 461, sec. 3. (3) If the engineer (as the evidence tends to show) saw or by reasonable diligence could have seen Loring's perilous position in time to save his life, the railroad company is liable, even though deceased might have been a stranger or trespasser. Williams v. Railroad, 96 Mo. 275; Erwin v. Railroad, 96 Mo. 290; Hilz v. Railroad, 101 Mo. 36; Hanlon v. Railroad, 104 Mo. 381; Lynch v. Railroad, 111 Mo. 601; Guenther v. Railroad, 108 Mo. 18.
This is an action for damages, brought by the widow of Frank Loring who was killed by a train of cars in defendant's yards at Willow Springs, on the seventh day of November, 1891.
Frank Loring was a section hand working for defendant in its said yards, and the petition alleges that he was killed by and through the carelessness, recklessness and criminal negligence of defendant's agents, servants and employees in the manner and by the means following, that is to say:
"That said Frank Loring, husband of plaintiff as aforesaid at the time aforesaid, was working as a section hand for defendant and the Current River Railroad Company, in and on their switch yard at said city of Willow Springs; that while so working on one of the tracks in said yard, the agents, servants and employees of defendant, suddenly and without warning or signals, started and set in rapid motion an engine with three box cars in front of it, and ran said engine and cars at a rapid and fast speed on said track where said Loring was at work, that there were no brakemen or other parties on said box cars to give signals or control the motion thereof; that the engineer in charge of such engine and cars could easily have seen said Loring, but was looking in an opposite direction; that while such train was moving and being run as aforesaid, the said Loring was struck and caught by the box car in front, and was dragged and carried a long distance, and then run over and killed; that while being so dragged and carried by such cars, the said engineer in charge of said train was often signaled and warned of the perilous position of said Loring by many persons near by, but gave no heed or attention thereto and continued the rapid motion of such train until said Loring was run over and killed; that by and through the criminal carelessness, recklessness and negligence of the servants and employees of defendant as aforesaid, the said Frank Loring was run over and killed."
The answer admits the incorporation of defendant; the employment of deceased, but denies that his death was caused by defendant's negligence, and then avers that his death was caused by his own contributory negligence in stepping on a track immediately in front of a moving train and so close thereto that it could not be stopped in time to prevent the injury to him; and third, that if the engineer was in any manner negligent in handling said cars, and if his carelessness contributed to the death of said Loring, or if the death of said Frank Loring was caused by any of his own acts of contributory negligence, or by the concurring negligence of said engineer and said Frank Loring, while the engineer was doing switch work on said tracks and while said Frank Loring was working as a section hand on said switch tracks on said yard, then the said engineer and said Frank Loring were in law fellow servants, and this defendant is not liable for the injury and death of said Loring caused by the negligent acts of a fellow servant.
The following facts were developed on the trial: At Willow Springs, the Current River Railroad has its western terminus and maintains union switching yards in connecting with the Kansas City, Fort Scott & Memphis Railroad. There are at least five or six distinct tracks in these yards, perhaps more, and many trainmen and employees of the two systems, which are operated conjointly, work in these yards, making up and sending out trains. Frank Loring was working under foreman Robert Manos, whose section included these yards and tracks, and had been so engaged for four to six months, or longer, working regularly on these tracks and switches, prior to his death. The engine and crew, consisting of conductor, engineer, fireman and two brakemen, which did the switching in these yards came down every morning from Springfield about 7:45 and remained during the day and returned to Springfield at night.
On the morning of the accident the section gang, under their foreman, Manos, were working on a split switch just east of the depot and had been so engaged for an hour and a half, when the switch engine had occasion to use this switch which had been spiked by the section men in repairing it; thereupon Manos and his men, among whom were Murray and the deceased Loring, removed the spikes and the engine moved over into a different portion of the yards, took three box cars and again passed over the same track, and returned, this time pushing the cars in front of it over a track known by them as the "coach" or "scale" track, lying near the one on which the men had been working but some eight feet from it.
While this switching was going on and before the cars passed the last time, Loring asked Manos if he had not better go for some water, and the foreman Manos told Loring and Murray they could go, for they could not do anything till the train got through switching. Thereupon Murray and Loring started off in a north-easterly direction across the other tracks and Manos went on with some part of the work. While the location of the different men was not marked on the tracing offered in evidence at the trial, it is evident from the testimony that Manos was near the switch where his work was, and on what is called the Current River main line -- Jones being at work on the same track and about thirty feet east of Manos -- Loring and Murray walking northeasterly and about to cross the "scale" or "coach" track, the next one to that on which Manos and Jones were, and about eight feet north of it, and the cars pushed by the engine were approaching from the west on the scale track and were near by.
Such being the situation, what took place is described by them as follows: Manos says: "I happened to look up and the cars were nearly against the boys -- they did not seem to be noticing the train -- then I hallooed at them, and just as I spoke to them the last time the car struck them and knocked Frank Loring down in the center of the track and knocked Murray off one side." Loring was run over and so injured that he died soon after.
Murray, who was with Loring, says:
Brakeman McEwen says: Both were struck -- Loring being run over and killed.
Jones, another section hand, says he was about thirty feet east of Manos; that he heard someone shout and looked up and saw Loring stepping upon the track and the cars close behind him.
There was nothing to obstruct the view of the approaching cars, and all the witnesses agree that neither Loring nor Murray looked...
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