Gessley v. Missouri Pac. Ry. Co.

Decision Date19 November 1888
PartiesDANIEL GESSLEY, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
CourtKansas Court of Appeals

Appeal from Howard Circuit Court. --HON. GEORGE H. BURCKHARTT Judge.

AFFIRMED.

The case is stated in the opinion.

W A. Martin, for the appellant.

(1) Appellant relies for reversal on the following points to-wit: (a ) The petition is so inexplicit as that appellant could not gather from it in what the negligence consisted on which appellee relied to make out his case, and no evidence should have been allowed introduced against defendant's objections. (b ) The evidence offered by the appellee did not sustain the allegations of the petition on material points, without the proof of which there could be no recovery, and showed that plaintiff's own negligence contributed to and was the direct cause of the injury, and the demurrer to evidence offered by defendant should have been sustained. (c ) There was improper evidence admitted on the side of appellee against the objection of appellant. (d ) The instruction asked by appellant and refused by the court should have been given and the instruction given by the court of its own motion should not have been given against the objection of appellant. (2) Authorities on the first point: R. S., sec. 3511; 1 Greenl. Ev., secs. 51, 60. (3) Authorities on the second point: Patterson's Ry. Acc. Law, secs. 44 to 48, incl.; Ashbrook v. Railroad, 18 Mo.App. 290; Turner v. Railroad, 74 Mo. 692; Hixon v. Railroad, 80 Mo. 335; Powell v. Railroad, 76 Mo. 80; Lenox v. Railroad, 76 Mo. 90; 1 Greenl. Ev., supra; 95 U.S. 697; 114 U.S. 615. (4) Authorities on third point: 1 Greenl. Ev. [14 Ed.] sec. 440. (5) Authorities on fourth point: Lenox v. Railroad, 76 Mo. 90, and authorities cited on second point.

S. C. Major and Draffen & Williams, for the respondent.

(1) The petition is sufficient, and properly states a cause of action against defendant. 1 Thomp. Negl. 461; Railroad v Goebel, 7 West. Rep. 689; Stinson v. Railroad, 32 N.Y. 333; Morris v. Railroad, 45 Iowa 29; McWilliams v. Mills Co., 31 Mich. 274. (2) No motion was filed to require petition to be made more certain. The only objection now open to defendant is that it does not state facts sufficient to constitute a cause of action. It is certainly sufficient after verdict. R. S., sec. 3582; Hall v. Johnson, 57 Mo. 521. (3) There was no evidence of contributory negligence upon plaintiff's part. He was under no obligation to keep a lookout for trains or engines to enter upon the side-track, nor was there any negligence in not having one plank at a time handed into the car while loading it. He was loading the car with defendant's consent, and with the knowledge of defendant's employes. He had no reason whatever to anticipate the backing of a train upon the side-track, while he was working there, and for that reason was under no obligation to be prepared for such an emergency. The cases in regard to the duty of travelers at railroad crossings have no application here. " The general rule is, that to persons who are lawfully upon the track engaged in labor the railroad company owes a duty of active vigilance, and such persons have the right to become engrossed in their labor to such an extent that they may be oblivious to the approach of trains, relying as they may upon the performance of the duty imposed by law upon the railroad company with reference to them." 1 Thomp. on Neg., p. 461, sec. 3. (4) The instruction given by the court of its own motion, and that given upon the part of the plaintiff, fully covered the case. " When a railroad company puts its loaded cars upon a side-track for the purpose of being unloaded by the owners of the freight [or its empty cars to be loaded], and such owners, their agents or servants, with the express or implied consent of the company, proceed to remove said freight [or load said car] the company has no right, without special notice and warning, to run or back a train in upon the sidetrack, while the cars are being unloaded [or loaded]. And while in such case those engaged in the work of unloading [or loading] are not permitted to close their eyes or ears to what comes within the range of their senses, yet they may give their undivided attention to their work, and are justified in assuming that the company will not molest them or render their position hazardous without such notice or warning." Railroad v. Goebel, 7 West. Rep. 689. (5) The plaintiff was entitled to special notice and warning before the train backed on the side-track, and the instruction by the court of its own motion was correct. Railroad v. Goebel, 7 West. Rep. 689; Newson v. Railroad, 29 N.Y. 383; 1 Thomp. on Neg. 461. (6) The instructions, upon the case made by the evidence, were more favorable to the defendant than it was entitled to. There was no evidence whatever of contributory negligence. (7) All of plaintiff's evidence was to the effect that no notice or warning of any kind was given. (8) Upon the testimony of defendant's conductor alone, the plaintiff was entitled to a verdict. The conductor's evidence is that he called out that he was about to back the train upon the side-track, but that he saw that the plaintiff did not seem to notice or heed it. Seeing that plaintiff did not understand the announcement, and was not acting upon it, he nevertheless recklessly allowed the train to be backed against the car without further notice. Even if plaintiff, as a prudent man, might have heard the call, and if defendant was under no obligation to give special notice and warning to him, yet when defendant's servants saw his danger, and saw that he did not understand or hear the announcement, it was gross carelessness not to give him further notice. If they saw the danger in time to have averted it, even if he had been a trespasser, it was their duty to have done so. Under this view, the defendant's refused instruction was properly refused. Morris v. Railroad, 45 Iowa 29; Beyman v. Railroad, 88 Mo. 678. (9) It was perfectly competent to ask the conductor the question complained of by defendant. It was not asked to prove a fact, but to show the interest of the witness in exonerating himself, and to affect his credit. For this purpose it was proper. (10) Upon the record, the judgment...

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