Koons v. Kansas City Suburban Belt Railroad Co.
| Citation | 77 S.W. 755,178 Mo. 591 |
| Parties | KOONS v. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY, Appellant |
| Decision Date | 23 December 1903 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Reversed.
Lathrop Morrow, Fox & Moore for appellant.
(1) The primary duty of plaintiff's husband was to note the approach of trains or engines at the crossing. His violation of this duty was the direct cause of his death and therefore, there can be no recovery. Coleman's Adm'x v. Railroad (Ky.), 63 S.W. 39; Clark v Railroad, 128 Mass. 1; Beach on Contributory Negligence, sec. 190; Railroad v. Crawford, 8 So. 243, 89 Ala. 240; Tirrell v. Railroad (Mass.), 62 N.E. 745; Bailey's Law of Personal Injuries Relating to Master and Servant, sec. 1281. (2) Where, as in this case, an employee is injured through a failure to perform his duty, there can be no recovery. Roberts v. Telephone Co. (Mo.), 66 S.W. 155; Nichols v. Glass Co., 126 Mo. 64; Gleason v. Mnfg. Co., 94 Mo. 201; Peppett v. Railroad, 78 N.W. 900; Maes v. Railroad, 23 S.W. 725; Conway v. Railroad (Ia.), 72 N.W. 543; Miller v. Railroad (Mich.), 51 N.W. 370; Stroble v. Railroad, 70 Ia. 555; Railroad v. Bargonier, 119 Ill. 51; Alexander v. Railroad (Ky.), 25 Am. Eng. R. R. Cas.; Railroad v. Carroll, 84 F. 772; Erskine v. Beet Sugar Co., 71 F. 270; Butte v. Coal Co. (Utah), 47 P. 77; Railroad v. Grubb (Ind.), 21 N.E. 460; Railroad v. Dudley (Va), 18 S.E. 274; Anderson v. Telephone Co. (Wash.), 53 P. 657; McGorty v. Telephone Co. (Conn.), 38 A. 559. (3) There was neither allegation nor proof that the conduct of the servants of defendant managing the engine was characterized by a willful, wanton or reckless disregard for human life, and there is, therefore, no evidence in the record to support the judgment rendered. Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Morgan v. Railroad, 60 S.W. 195; Kellny v. Railroad, 101 Mo. 67; Zumault v. Railroad, 74 S.W. 1015; Boyd v. Railroad, 105 Mo. 371; Skipton v. Railroad, 82 Mo.App. 134; White v. Railroad, 85 Mo.App. 411; Van Bach v. Railroad, 71 S.W. 358; Loring v. Railroad, 128 Mo. 349; Railroad v. Pool, 160 U.S. 447; Ferguson v. Railroad (Ia.), 69 N.W. 1026; Martin v. Railroad (Mass.), 56 N.E. 719. (4) Plaintiff's husband, in standing upon the track or so near thereto as to be in the line of danger, voluntarily assumed a dangerous position when he could have performed his duties equally as well by standing where there would be no danger of being struck by a train. Under such circumstances there can be no recovery. Bailey's Personal Injuries Relating to Master and Servant, sec. 1121; Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 311; Railroad v. Bivins, 15 So. 514; Railroad v. Orr, 91 Ala. 548; Railroad v. Holborn, 84 Ala. 133.
F. F. Rozzelle, F. P. Walsh, and John G. Park for respondent.
(1) Engine 61 started toward the crossing first. This must have misled Koons and made him think engine 61 was about to cross Holmes street. Schmitt testified that he understood from Koons' movements that engine 67 would not move. Schmitt could see engine 67, but none other. Koons, in the performance of his duty, immediately before engine 67 moved, was warning and signaling Schmitt not to drive on the tracks. The act of a flagman or watchman in going into a dangerous place to warn or signal persons not to approach, is not contributory negligence as a matter of law. Callahan v. Railroad, 170 Mo. 496; Erickson v. Railroad, 71 S.W. 1026; 171 Mo. 659; Railroad v. Goss, 72 S.W. 94; Sammon v. Railroad, 62 N.Y. 251; D'Oro v. Railroad, 13 N.Y.S. 789, 129 N.Y. 632. Koons's first duty was to Schmitt. In saving Schmitt from danger he is not himself to be accounted careless. Beach on Contributory Negligence (3 Ed.), sec. 42. Besides, his whole attention was given to his work in hand of signaling Schmitt and seeing that Schmitt understood his signal. A servant engrossed in the performance of his duty to his master may be excusable for a neglect to note approaching dangers. Bluedorn v. Railroad, 121 Mo. 267; Stocks v. Railroad, 71 S.W. 732; Railroad v. Volk, 151 U.S. 73; Tobey v. Railroad, 94 Iowa 256. The whole question of whether deceased was negligent, and, if so, whether his negligence was the proximate cause of his death, was properly submitted to the jury in defendant's instructions. (2) Koons was doing his duty in signaling Schmitt. He was not derelict in any duty which he owed defendant. Koons owed no duty to defendant to keep out of danger; he owed that duty to himself. Otherwise, every injured employee is injured through breach of duty to his master and can not recover. "Machinery cases" have no applicability to the issues in this case. In none of those cases is the "theory of discovered peril" pertinent. (3) It was the engineer's duty to the general public and to Koons to look out for persons on the Holmes street crossing, to anticipate the presence of persons upon the track at that point, and to exercise ordinary care in passing over the street. Oates v. Railroad, 168 Mo. 544; Stanley v. Railroad, 114 Mo. 619; Baker v. Railroad, 147 Mo. 156; Kellny v. Railroad, 101 Mo. 77; Sullivan v. Railroad, 117 Mo. 226. Before engine 67 started, Koons stood in the south track, eighteen feet east of the west line of Holmes street. (Testimony of Schmitt.) The engine stood ten feet or more west of Holmes street. (Testimony of the engineer and the fireman.) And the engine was twenty-eight feet or more from deceased. (Testimony of Schmitt.) The rear of the engine cut off ten to fifteen feet of the view. (Testimony of engineer.) That leaves thirteen to eighteen feet of view unobstructed for the engineer and fireman to see Koons in his perilous position before the engine was started. That brings the case squarely within the rule that though a person may be negligent in being upon a railroad track and in a position of imminent peril, yet if the persons operating the train know, or, by the exercise of ordinary care, might know of the other's peril in time to prevent injury, and fail to prevent it, the railroad company is liable. Such a case is one of wanton negligence whereto contributory negligence is no defense. Morgan v. Railroad, 159 Mo. 276; Kellny v. Railroad, 101 Mo. 74. The doctrine in Missouri from very early times has been that in such cases the proximate cause of the injury is the failure of the defendant to exercise ordinary care after the opportunity of the injured party to save himself has been lost. Klockenbrink v. Railroad, 72 S.W. 900; Stocks v. Railroad, 71 S.W. 730; Hutchinson v. Railroad, 161 Mo. 246; Baird v. Railroad, 146 Mo. 281; Chamberlain v. Railroad, 133 Mo. 587; Lloyd v. Railroad, 128 Mo. 595; Lynch v. Railroad, 111 Mo. 610; Dahlstrom v. Railroad, 108 Mo. 539; Fiedler v. Railroad, 107 Mo. 652; Guenther v. Railroad, 108 Mo. 18; Hanlon v. Railroad, 104 Mo. 389; Dunkman v. Railroad, 95 Mo. 232; Guenther v. Railroad, 95 Mo. 295; Bergeman v. Railroad, 88 Mo. 678; Werner v. Railroad, 81 Mo. 374; Kelly v. Railroad, 75 Mo. 140; Frick v. Railroad, 75 Mo. 595; Morrissey v. Wiggins Ferry Co., 43 Mo. 383; Adams v. Wiggins Ferry Co., 27 Mo. 95. This is the rule established in the Supreme Court of the United States. Inland, etc., Co., v. Tolson, 139 U.S. 551; Railroad v. Ives, 144 U.S. 408. The doctrine came to us from England where it has been announced by courts and judges of the very highest authority. Radley v. Railroad, L. R. 1 App. Cas. 759; Davies v. Mann, 10 M. & W. 546; Tuff v. Warman, 5 C. B. (N. S.) 573; Springett v. Ball, 4 F. & F. 472. (4) Even after Koons had been struck by the engine and knocked down, his life was not lost until he had been pushed along the plank crossing for thirty-one feet and along the rails east of the crossing for thirty to forty-five feet. During this time the engine was running slowly, only two or three miles per hour. It could have been stopped instantly, or in three to five feet. (Testimony of O'Neil; testimony of engineer.) The engineer had this notice of deceased's peril: (a) Schmitt and some persons at the saloon screamed almost immediately, Schmitt crying, "Stop!" as loud as he could. (b) Mrs. Schneider testified that Koons screamed just as the engine struck him, and several times afterwards. (c) Koons's hat and flag fell near the middle of Holmes street, on the north (the engineer's) side of the engine. It was the engineer's duty to stop his engine and prevent Koons's death. Brook v. Railroad, 81 Iowa 514. (d) The engineer testified in his deposition that he first knew he had struck Koons when about half way across Holmes street, after he had run the length of his tank (35 feet). He also testified that his engine had been at rest nine to ten feet west of the shanty. This would put the engine fourteen to fifteen feet west of Holmes street, and was equivalent to a statement that he found out Koons's peril twenty to twenty-one feet east of the west line of Holmes street, so that he had twenty-eight to twenty-nine feet in which to stop his engine before passing the plank. While Koons' body was being shoved along the plank, it was not under the wheels, but was resting on the brakebeam. Under these undisputed facts, the engineer had actual knowledge of Koons's peril in time to have saved his life, and under all the authorities defendant is liable.
This is an action, under the statute, to recover five thousand dollars damages, for the death of the plaintiff's husband, caused by being run over and killed by one of the defendant's cars, on March 9, 1899, at Second and Holmes streets, in Kansas City. The plaintiff...
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