Cambron v. Omaha & St. L. R. Co.

• Decision Date: 03 December 1901
• Parties: CAMBRON v. OMAHA & ST. L. R. CO.
• Court: Missouri Supreme Court

65 S.W. 745

165 Mo. 543

CAMBRON v. OMAHA & ST. L. R. CO.

Supreme Court of Missouri.

December 3, 1901.

RAILROADS — INJURY TO BRAKEMAN — NEGLIGENCE — ENGINEER'S FAILURE TO OBSERVE SIGNALS — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — ABSENCE OF BRAKE SHOES.

1. A petition alleging that plaintiff, a brakeman on defendant's freight train, gave the engineer signals to back the train for the purpose of making a coupling, and further signals indicating the distance of the car, and directing the engineer to decrease the speed of the train, in disregard of which he backed the train so fast that plaintiff, who had stepped in front of the stationary car to make the coupling, was injured, did not fail to state a cause of action because not averring that the engineer negligently failed to "see" the signals.

2. Plaintiff's action in going between the cars without waiting to see if the engineer was observing his signals was not, as a matter of law, contributory negligence.

3. In an action against a railroad company for personal injuries to a brakeman caused by the engineer's failure to obey the brakeman's signals, an instruction requiring the jury to find that the brakeman "gave the engineer the signals" as the predicate of the latter's failure to obey them, when considered in connection with a subsequent charge that, if the circumstances were such that the engineer could not see the signals, there could be no recovery, was not improper because permitting recovery regardless of whether the signals were seen or not.

4. Where a brakeman about to make a coupling was injured by the train being backed too rapidly, and it appeared there were no brake shoes on the engine, though they were used on all properly equipped engines, the brakes being useless without them, and the fireman testified that the engineer was backing "as slow as he could hold it," the jury were justified in finding that the absence of brake shoes was the cause of the accident.

In banc. Appeal from circuit court, Nodaway county; Gallatin Craig, Judge.

Action by Lewis Cambron against the Omaha & St. Louis Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

On the 7th or 8th of December, 1897, the plaintiff, then a young man 22 years old, was employed by the defendant company as brakeman on a local freight train from Stanberry, Mo., to Council Bluffs, Iowa. This train, as indicated, did the local work, loading and unloading freight at the various stations, and switched cars to and from the side tracks at the way stations. On the 22d day of February, 1898, plaintiff was head brakeman on this local freight train eastbound from Council Bluffs to Stanberry. When the train reached Burlington Junction, one mile west of Roseberry, the conductor told the plaintiff that there would be a car to take into the train at Roseberry, and plaintiff testified that he went to the engineer, Davidson, and told him they were to get the car at Roseberry. Chattin, the rear brakeman on the same train, also told plaintiff, and saw him start immediately toward the engine. The fireman also knew the car was to be taken off of the house track, but could not remember who told him. The engineer, however, testified that plaintiff was not on his engine; that he did not see or know of the presence of the car, and did not know a car was to be taken on at that station; and that the fireman did not tell him the car was four or five car lengths behind the train after it stopped, as the fireman testified. Plaintiff testified that the car was in plain view, so that one interested in the work of the train could see and know which car was to be taken. The caboose was cut off at the station, and the train stopped east of the switch on the main track, and on a signal from plaintiff backed on the "house" track. There were three tracks at this station, — the main track, the passing track, and the house track. The house track was north of the main track, and the depot, water tank, and tool house were also north of the main track and the house track was north of these buildings. The car to be taken was standing on the house track, near the tool house, 307 feet west of the switch. The engine was headed east, and the engineer was leaning out of his cab window, looking back for signals from plaintiff for the management of the train. The engineer admitted he received the signal to back, but denies that he received the signals indicating the car was four or five lengths, or that the fireman so told him, and says he did not see the car on the house track. There was a considerable downgrade on these tracks to the west. When the train had passed the switch connecting the main track and house track, the engineer stopped the train, the plaintiff threw the switch, and signaled the engineer to back down, and then ran ahead to make the coupling, and when near the car to be taken stepped on the track to set the pin on the standing car, but at that moment noticed the train was dangerously near, and was not slacking its speed. He attempted to step out, but was struck by the backing train, and both of his legs were crushed so as to require their amputation. It appeared in evidence that there were no brake shoes on the engine, thus rendering the engine brakes useless. Plaintiff did not know this, but the engineer testified that the brake shoes had been off for about a week; that he had previously reported that fact to his superiors, and that the brakes were useless without the shoes. Summers, the fireman, also testified that there were no brake shoes on the engine on the trip before this. He further testified that the train was coming back "pretty fast" for that coupling. Chattin, the rear brakeman, testified that he saw the train was coming too fast; that plaintiff was in danger, and he called to him to get out of the way. Notwithstanding the testimony of the engineer that he did not know that he was to take the car into his train at Roseberry, there was positive testimony that he was advised that it must be taken, and that the fireman told him the car was four or five lengths back; and this testimony is corroborated by the leaving of the caboose at the depot, and the stopping of the train at the switch, and the signals to back on the house track. It is certainly significant that the engineer, of all the crew, did not learn this car was to be taken, and did not grasp the purpose of all these movements at the time, all happening in broad daylight at 3 o'clock in the afternoon. The evidence further disclosed that there were three kinds of signals in universal use for a situation like that, — one to back the train, one showing the distance of the car to be coupled from the rear end of the train, and one to slow up. Plaintiff testified he gave the signal to back the train, and followed it with a signal that the car was three or four car lengths behind, and then started, and as he went signaled the engineer to slow up. When these signals were given, the engineer was sitting on the right-hand side of the engine, with his head out of the window, looking back for signals from plaintiff. Plaintiff gave the three signals in their order when he was near the switch. The engineer says he got the signal to back up, but did not see the others. Chattin, the rear brakeman, testified he saw plaintiff give the car length signal. The engineer says it was his duty to keep his eye down the track and watch for signals. He further says it would have been proper for plaintiff to have given the car length signal at the switch as plaintiff says he did, and that, if he had seen the signals, he could have regulated the speed of the train so as to stop at the proper place. The train came back at a rate of about four miles an hour. The engineer testified that a coupling could be safely made when the train was going two or three miles an hour; that he was in fact going four miles an hour down grade with defective brakes; that, while a coupling could be made while going four miles an hour, "it would be better going slower." Plaintiff ran to make the switch at the rate of four or five miles an hour, but the train in a distance of 300 feet overtook him, and it was a fair inference to find the train was running as fast or faster than plaintiff, and in excess of the reasonable speed for making a coupling. Other material facts may be stated in the course of the opinion. The jury, under the instructions of the court, rendered a verdict for plaintiff, and assessed his damages at $15,000. Defendant appeals. The errors assigned are as follows: First, refusal to sustain defendant's objection to any testimony under the allegations of the petition; second, the giving of plaintiff's instruction numbered 1; third, overruling motions for new trial and in arrest; fourth, refusal to sustain a demurrer to the evidence.

Ed. E. Aleshire and J. G. Trimble, for appellant. Frank Hagerman and L. H. Waters, for respondent.

GANTT, J. (after stating the facts).

1. The...