McKee v. Chicago, Burlington & Quincy Railroad Co.

Decision Date01 December 1902
Citation70 S.W. 922,96 Mo.App. 671
PartiesWILLIAM H. McKEE, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
CourtKansas Court of Appeals

Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.

REVERSED.

Judgment reversed.

O. M Spencer and H. J. Nelson for appellant.

(1) The court erred in not sustaining defendant's demurrer to plaintiff's case, because plaintiff based his case solely on alleged customs as to climbing through between cars and as to bell signals by switch engines, and there was an entire failure of proof as to any such customs, either in relation to trains standing or moving on the east main line, or even in relation to cars standing or moving in the yard. It requires very different evidence to establish a custom. Anderson Law Dict., pp. 303 and 1070; 27 Am. and Eng. Ency. Law (1 Ed.), pp. 741-2-3. (2) The court erred in not taking the case from the jury, because plaintiff's act in climbing in between the cars was negligent in itself and bars him from recovery. Lard v. Railroad, 12 Colo. 390; s. c., 21 P. 151; Hudson v. Railroad, 123 Mo. 449; Hudson v. Railroad, 101 Mo. 33; Gurley v Railroad, 104 Mo. 231; Bean v. E. L. A. Corp., 50 Mo.App. 462; Corcoran v. Railway, 105 Mo 404-5-6. Nor would the fact that there was a custom among fellow-employees to go between the cars, constitute any excuse for his rash act, even if such a custom were proved. 27 Am. and Eng. Ency. Law (1 Ed.), page 899, and numerous cases there cited. 16 Am. and Eng. Ency. Law (1 Ed.), page 462. Plaintiff knowingly selected a dangerous way, when a more safe one was apparent to him, and was therefore negligent as a matter of law. Baily, Master and Servant, secs. 1121-1123; Moore v. Railroad, 146 Mo. 582. (3) The court erred in submitting the case to the jury, because plaintiff was himself guilty of negligence contributing to the injury. He did not look south before he went in between the cars. It was his duty to look. Hudson v. Railway, 101 Mo. 31; Corcoran v. Railway, 105 Mo. 404. (4) The case should not have been submitted to the jury, because plaintiff based his case on alleged failure to follow a custom as to signals. He did not know of or rely upon any such custom, and hence cannot have the benefit of it even if it existed. He testified he did not rely on such a custom. Bailey, Master and Servant, sec. 3343; Wood, Master and Servant (1 Ed.), sec. 94; 27 Am. and Eng. Ency. Law, p. 714 and 748.

Vories & Vories for respondent.

(1) The plaintiff in this case was not only lawfully upon the railroad's property, but the act of the defendant made it necessary that he cross the tracks in question. It amounted to more than an invitation. (2) Where an employee of a railroad company is lawfully in the yard of said company, it is the duty of those in charge of trains to give warning to such employees before moving trains; and this is even so in the absence of a rule or custom to that effect. 2 Thompson Commentaries on Negligence, sec. 1756, 1757; Kelly v. Railway and Transit, 95 Mo. 279; Wilkins v. Railway, 101 Mo. 106. (3) It is the duty of the employees in charge of an engine to look out for persons lawfully in the railroad yard, and if they do not, the company is liable, even though the party injured may have been negligent. Kelly v. Railway, 95 Mo. 279; Wilkins v. Railway, 101 Mo. 106; Mauerman v. Railway, 41 Mo.App. 351. (4) Employees may rely upon the rule or custom of a railroad to ring the bell or sound the whistle. Church v. Railway, 119 Mo. 216. (5) The question as to whether plaintiff relied upon the rule or custom to ring the bell, or, in other words, whether the failure to ring the bell was the proximate cause of the injury, was properly submitted in plaintiff's first instruction. Church v. Railway, 119 Mo. 216.

OPINION

BROADDUS, J.

--This is an action for negligence. Plaintiff sues to recover damages for injuries alleged to have been received May 2, 1901, while in the employ of defendant at its switch yards in the city of St. Joseph, Missouri. The allegations of the petition are substantially, that there were numerous switch tracks in said yard used in the handling of defendant's freight business, in which defendant employed a large number of men; that its freight depot was on the east side of said tracks; that on the west side thereof the defendant had provided for the use of its workmen a privy vault, which in order to reach they were compelled to cross said tracks and that it was their custom so to do, all of which was well known to defendant; that defendant's freight trains were constantly passing to and fro through said yards and over said tracks, so that it became dangerous for said workmen to pass from said yard to said vault on the west side as aforesaid; that defendant, in order to render it less dangerous to them while passing over said tracks to said vault, adopted certain signals, such as the ringing of bells and other means, to be given when such freight trains were to be moved, so as to give its employees notice of such movements; that on said May 2, 1901, while so employed, it became necessary for plaintiff to use said vault, and while he was so crossing said tracks, on one of which was a freight train, and while he was in the act of climbing over the coupling of two of the cars of said train, defendant, negligently, without notice and in violation of a certain ordinance of said city of St. Joseph, caused said train to be moved, when it knew, or by the exercise of reasonable care might have known, of his danger; that plaintiff by said movement of the train was thrown from his balance and injured; and that at the time he was so injured he was relying upon the defendant to give the customary signal of the intended movement of said train.

The answer consisted of a general denial and allegations to the effect that the plaintiff was guilty of contributory negligence and had assumed the risk. The trial resulted in a verdict and judgment for the plaintiff from which defendant appealed.

On the trial a plat was introduced showing the location of the yards and tracks in question, by which it appears that immediately west and parallel with the switch tracks were two tracks designated as the east main line and the west main line, the east track being used for north-bound freight and passenger trains and the west track for south-bound trains. The train by which plaintiff was injured was standing on the track designated as the east main line. It was proved that plaintiff was injured at the time and place stated in his petition.

There was evidence tending to show that there was no signal given of the starting of said train at said time. It was also shown that it was the custom of the employees to cross said tracks in going to said vault, and that at times they crawled over the couplings between the freight cars standing on the tracks with engines attached ready to move. It was also shown that it was the custom of the defendant before starting the movement of its freight trains to give a signal by the ringing of bells of such intended movement; but it was not shown that such signals were given for any special purpose--only that it was customary to give them. The ordinance of the city of St. Joseph, mentioned in the petition, was not read in evidence.

It was in proof that sometimes an engine was used in the rear to push freight trains going north as that part of the track was an up-grade. But when plaintiff made the attempt to go to the vault in question, he says he looked and saw no engine attached to the rear end of the train and that he could not see to the north or front end. There was, however, an engine at each end, although plaintiff further testified that as he did not think there was such an engine at the rear end and so did not rely on a signal to be given. But under all the circumstances and the position of the train ready for a departure north, he must have known there was a locomotive at the front end and that consequently the train was likely to be moved at any time.

On the conclusion of plaintiff's evidence the defendant submitted a demurrer to his case which the court overruled. At the close of the case the court gave four instructions at the instance of plaintiff and over the objections of the defendant. The defendant asked eighteen instructions, of which the court gave nine and refused the remainder. The contention of the defendant is that the petition did not state a cause of action; that the allegations thereof are not sustained by the evidence; and that the court committed numerous errors in giving plaintiff's instructions and in refusing those offered and not given for the defendant.

The theory of the plaintiff is, that the defendant by the location of the vault aforesaid, across the tracks from where its employees were engaged, was not only an invitation for them to cross the tracks in the use of said vault, but that they were...

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