70 S.W. 922 (Mo.App. 1902), McKee v. Chicago, Burlington & Quincy Railroad Co.
|Citation:||70 S.W. 922, 96 Mo.App. 671|
|Opinion Judge:||BROADDUS, J.|
|Party Name:||WILLIAM H. McKEE, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant|
|Attorney:||O. M. Spencer and H. J. Nelson for appellant. Vories & Vories for respondent.|
|Case Date:||December 01, 1902|
|Court:||Court of Appeals of Missouri|
Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
(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.
(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.
[96 Mo.App. 674]
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