Grattis v. Kansas City, P. & G. R. Co.

• Decision Date: 10 January 1900
• Citation: 55 S.W. 108,153 Mo. 380
• Court: Missouri Supreme Court
• Parties: GRATTIS v. KANSAS CITY, P. & G. R. CO.

55 S.W. 108

153 Mo. 380

GRATTIS v. KANSAS CITY, P. & G. R. CO.

Supreme Court of Missouri.

January 10, 1900.

MASTER AND SERVANT — EVIDENCE — VICE PRINCIPAL — FELLOW SERVANTS — DEPARTMENT DOCTRINE — SAFE APPLIANCES — DANGER SIGNALS.

1. A conductor of a freight train, signaling to the engineer to go forward, is a fellow servant of the engineer and also of the fireman who was injured by the negligent acts of the conductor in making the signal and the engineer in obeying it.

2. A railroad company, in furnishing a stub switch, which is reasonably safe when used in the manner for which it was intended, is not negligent where an engine is thrown off the track when running through it from an opposite direction, though, if a split switch had been used, the train would probably have remained on the track.

3. The fact that defendant had placed its switch signal target on the same side of the main track on which its side track was placed, instead of on the opposite side, did not constitute negligence, where the evidence showed that there was no uniform rule as to which side of the track it should be placed; and the master is not liable for injuries resulting from running through an open switch by reason of the target being hidden by freight cars on the side track, though, if it had been on the other side, it would have been clearly visible.

Brace, J., dissenting.

In banc. Appeal from circuit court, Newton county; J. C. Lamson, Judge.

Action by Grant Grattis against the Kansas City, Pittsburg & Gulf Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Trimble & Braley, Benton & Sturgis, and John A. Eaton, for appellant. Cravens & Cravens and E. H. Stiles, for respondent.

MARSHALL, J.

The following opinion of division No. 1 is hereby adopted as the opinion of the court in banc. GANTT, C. J., and SHERWOOD and VALLIANT, JJ., concur. BURGESS and ROBINSON, JJ., concur in the judgment of reversal on the ground that the negligence of the engineer was the cause of the injury, and that the engineer and fireman were fellow servants; but do not regard the "department doctrine" as involved in the case. BRACE, J., dissents. It is therefore ordered that the judgment of the circuit court be reversed.

MARSHALL, J.

This is an action for damages for personal injuries received by plaintiff at McElhaney switch, in Newton county, Mo., between the hours of 1 and 2 o'clock p. m. on July 12, 1894. The petition charges that it was a switch station, where trains stop only when signaled; that there is a side track on the east side of the main track long enough to hold 11 standard freight stock cars; that at each end of the side track there was a switch post placed on the east side of the main track, instead of the west side, each post being about 6 feet and 4 inches from the east rail of the main track, and used to work the switch; that the switch posts have targets placed on their tops, one side being painted red and the other white, so that the color indicates whether the switch is thrown to connect with the switch or with the main track, — the red signifying that the connection is with the switch, and the white that it is with the main track, — and that, when the red appears, it is dangerous for trains to attempt to pass over from the opposite direction; that on July 12, 1894, the switch or side track was full of empty freight cars, there being 11 standard freight cars on it, which were put there by defendant on July 11, 1894, "making it impossible to see the target on the switch post at the south end of the switch track by those seated in engine cabs of trains moving south along said place until within 60 or 80 feet of said switch post; that the ties supporting the main track at the south end of the side track were rotten, and would not hold the spikes that were intended to hold the rails in place; that at the south end of the switch track was what is known as a `stub rail' switch, — an old and abandoned and extremely dangerous and hazardous character of switch, long since discarded by all practical railroad men, and especially dangerous and unsafe, under the circumstances, with the switch post and target on the east side of the main track; that the lock maintained on said switch was weak and old, and insufficient to hold the same"; that plaintiff was employed as fireman on a train that was going from Pittsburg. Kan., to Siloam, Ark., and when the train approached McElhaney flag station, going south, it was traveling at the rate of about 15 miles an hour, and when it neared the south end of the switch it was discovered that the switch was thrown for the side track, which left the end of the main track at the switch open to this train going south; that this could not have been discovered sooner because the cars on the side track obstructed the view of the switch post and target from plaintiff and the engineer on the engine; that, if the cars on the side track had not obstructed the view, or if the target had been on the west side of the track, it could have been seen for a quarter of a mile before reaching the end of the switch; that, as soon as plaintiff discovered that the switch was open, he notified the engineer, who tried to stop the engine, but could not do so in time, and the engine was thrown from the track, — the rotten ties gave way, and the engine was thrown over on its side; that, when plaintiff saw his imminent danger, he jumped from the cab of the engine; that the engine was old, worn out, and defective, and unfit for use, and the "pops" attached to the engine on the top of the steam dome, being defective and out of repair, flew out, and the steam escaped, and scalded and burned plaintiff over his whole body. Plaintiff then sets out the negligence of the defendant to be: "In permitting the empty cars to be and remain on the side track or switch aforesaid, and thereby preventing plaintiff and said engineer [who was killed] from seeing the signal target of the switch, which would advise them of the danger on account of said switch or track being moved out of place. In having said switch rods and targets on the east side of said main track, instead of on the west, where it ought to have been for the appliance to be reasonably safe, and where proper and ordinary railroading required them to be placed, and where a person in the exercise of ordinary care and foresight would, in view of the great danger involved, have placed them. In having at that place an unsuitable and unsafe `stub rail' switch, instead of a `split' or `spring' switch, which latter are entirely free from the danger which produced this accident, and which ordinary care and foresight on the part of the defendant would have caused it to provide. In permitting said engine to be out of repair, and said `pops' to be and remain loose, out of repair, and unsafe, and in a dangerous condition, as above stated. In having on said switch post an unsuitable and unsafe lock."

The answer admitted its incorporation, and ownership of the road, and also the allegations as to the character, purpose, and working of the switch, and denied the other allegations of the petition. It then pleaded contributory negligence of plaintiff and the engineer, and averred: That it was the duty of the plaintiff and the engineer to see that the switch was correctly set, and the track clear, before attempting to pass over it; and that they failed to exercise ordinary care in not stopping the engine where the cars on the side track obstructed the view of the target, until they could ascertain whether the track was safe to pass over. That plaintiff knew the character of the switch and the condition of the engine, and that, notwithstanding, they ran the train over the switch at a high rate of speed, and caused the accident. That plaintiff and the engineer were in possession of the rules of the company defining and prescribing their duties, one of which (No. 65) was: "A signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a danger signal;" another (No. 78) was: "All signals must be used strictly in accordance with the rules, and trainmen and engineers must keep a constant lookout for signals;" another (No. 121) was: "In all cases of doubt or uncertainty, take the safe course, and run no risks." That plaintiff and the engineer violated said rules by not stopping the train when they could not see the signals.

The reply was a general denial, but during the trial it was amended so as to allege that when the train approached McElhaney station it slowed up with the intention of stopping there, and at a point a short distance north of the end of the switch, and had almost stopped, when the conductor ordered the engineer not to stop, but to go on, which was done against plaintiff's protest, and he was powerless to prevent it or otherwise protect himself.

The trial disclosed the facts to be that the plaintiff, about June 1, 1894, began to run as a fireman on the local freight train between Pittsburg, Kan., and Siloam Springs, Ark., and, with the exception of a few days, made daily trips, and in doing so passed this switch every day. The train crew on the day of the accident were Jay Traver, engineer, George Bartholic, conductor, J. A. Cellar, brakeman, and plaintiff, fireman. There were two local freight trains running daily one each way between Pittsburg and Siloam. They usually met at Donahue, a station about four miles north of McElhaney switch. On this day the south-bound train, on which plaintiff was fireman, was late, and hence the freight trains met at Neosho between 12 and 1 o'clock p. m. The accident occurred between 1 and 2 p. m. The running time between Neosho and McElhaney was 15 or 20 minutes, so that the northbound freight passed safely over the switch in question about 30 to 40 minutes before the accident. The defendant had only acquired the portion of the road between Joplin, Mo., and Sulphur...