Hinzeman v. Missouri Pac. Ry. Co.

• Decision Date: 25 May 1904
• Citation: 81 S.W. 1134,182 Mo. 611
• Parties: HINZEMAN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

81 S.W. 1134

182 Mo. 611

HINZEMAN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 25, 1904.

MASTER AND SERVANT — RAILROADS — SECTION FOREMAN — COLLISION — ACTS IN EMERGENCY — INSTRUCTIONS — QUESTION FOR JURY.

1. In an action for the death of a section foreman, resulting from a collision with a train while he was in the discharge of his duties inspecting ties along the track, the evidence considered, and held to require the submission to the jury of the question whether the engineer and fireman saw the foreman in time to have saved his life by the exercise of ordinary care.

2. Where a section foreman was struck by a train while inspecting ties, it was error to instruct that, unless the jury believed that the engineer in charge of the locomotive willfully, wantonly, or recklessly ran deceased down and killed him, they should find for defendant.

3. Where a section foreman was struck by a train, an instruction limiting the railroad company's duty in the emergency to stopping the train, and stating that if, when the peril was discovered, it was then too late to stop the train, the company was not liable, and omitting the duty of sounding the whistle, was erroneous.

Appeal from Circuit Court, Johnson County; W. L. Jarrott, Judge.

Action by Cordelia E. Hinzeman against the Missouri Pacific Railway Company. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

R. T. Railey, for appellant. C. E. Morrow and O. L. Houts, for respondent.

VALLIANT, J.

The plaintiff's husband was struck and killed by a locomotive running on defendant's road, through, as plaintiff charges, the negligence of defendant's servants. The petition states that plaintiff's husband was in the employ of defendant as a section hand, and that on October 2, 1900, while he was engaged in the line of his duty near and upon the track, a locomotive and train of cars approached him from the rear, and he became and was in great and imminent peril of being run over and killed; that the defendant's servants in charge of the locomotive saw or by the exercise of ordinary care could have seen him, and became award of his peril in time to have averted the injury by the exercise of ordinary care, by stopping, or placing the locomotive under control, or sounding the usual danger signals, but negligently failed to use the appliances at hand to stop or place the engine under control, or to sound a danger signal, and ran the locomotive against the man and killed him. The answer was a general denial and a plea of contributory negligence. The facts stated as constituting contributory negligence are that Hinzeman was a section foreman on that part of the road which was the place of the accident; that he had "actual and constructive notice" of the approach of the train; that he, "after having learned of the approach of said train, and with full knowledge of the danger to which he was then subjecting himself, negligently, carelessly, recklessly, unnecessarily, and suddenly stepped near the track upon which defendant's train was then running, within a few feet of said train, well knowing at the time that it was traveling at the rate of 25 or 30 miles an hour. Then followed a paragraph in the answer containing statements showing that it was in the line of his duty to know that the train was coming and then due, and by that knowledge he had ample opportunity to avoid the danger, but negligently and suddenly stepped so near the track that he was struck, and that under those circumstances he assumed the risk. There was also in the answer a paragraph stating the duties, respectively, of the section foreman and the engineer, and drawing therefrom the conclusion that whilst Hinzeman and the engineer were not fellow servants, within the meaning of the statute, yet they were fellow servants under the common law, and therefore the defendant is not liable. The reply was a general denial.

The evidence on the part of the plaintiff tended to prove as follows: Hinzeman was the foreman of the section hands in charge of a section just outside the limits of Kansas City. The defendant's railroad at that place consisted of four tracks, lying east and west. The track farthest south was a switch track, the next was the main track for east-bound trains, the next the main track for west-bound trains, and the one farthest north was a switch track. Between the two main tracks is a space 9 feet wide. The Chicago, Milwaukee & St. Paul Railroad crosses defendant's tracks at a point between a quarter and a half mile west of the point of the accident. About 150 feet west of that crossing was a semaphore, designed to signal the engineer on a train approaching the crossing to stop or come on as the condition might warrant. The defendant's tracks, looking east from the crossing beyond the point of the accident, were straight and level, with nothing intervening to obstruct the view. On the morning of the accident Hinzeman had started out with his men, examining the cross-ties, with a view to removing the rotten ones and replacing them with sound ties. Hinzeman went ahead of his men, examining the ties, testing their condition with his pick, marking with his pick those he judged to be unsound, and the men followed, taking out those marked for removal, and putting sound ties in their places. He inspected every tie, and marked as unsound from two to five ties to the rail as he went along the route that morning. He did not apply the test of his pick to every tie, but examined them by sight and tested those whose appearance gave sign of decay. He walked on the north side of the south main track in the 9-foot space between the two tracks. When testing a tie, he would turn his face to the south, and, bending over the rail, would strike the tie with his pick. In going along the track in this way he had advanced more rapidly than his men, who were removing the ties he had marked, and was a considerable distance ahead of them. While he was in the act of testing a tie, or marking it with his pick for removal, bending over the north rail, and applying his pick, apparently noticing nothing else, he was struck by a locomotive drawing a passenger train, and received such injuries that he died in a short while. It was the regular east-bound passenger train, which left Kansas City at 8:10 that morning, and was on time at the place of the accident. On approaching the semaphore west of the Milwaukee crossing, it was necessary for the engineer to sound the whistle to notify the man at the semaphore that the train was approaching, and to do this in time to receive the signal from the semaphore, which was to inform the engineer whether to come on or stop. The engineer sounded the whistle and received the signal to come on. There was no other sound of the whistle after that until the plaintiff's husband was struck by the locomotive. One of the plaintiff's witnesses testified that the train made a loud noise as it passed over the Milwaukee crossing. The plaintiff's husband was in plain view of the engineer and fireman, and they saw him from the time they were 500 feet away until he was struck. When the engine struck him he was thrown up as high as the headlight of the locomotive, and fell diagonally across the space between the main tracks; his feet near to the north rail of the south main track. Just at the point where he was struck there were marks of the pick on two ties, and also on another tie the distance of a half rail to the west. Thence all along back to where the men were at work there were at intervals marks of the pick on ties which Hinzeman had condemned to be removed; but east of where he was struck there was no such mark. As soon as the man was struck, sharp blasts of the whistle were sounded and the train was stopped in about two train's lengths and backed to the place of the accident. The man was found unconscious, but by the time one of the section men reached him and was bending over him he became temporarily conscious, and asked, "What hit me?" He was placed in a baggage car and carried to the defendant's hospital, where he died about 11 o'clock that morning. At the close of the plaintiff's evidence the defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused.

On the part of the defendant the testimony tended to prove as follows: The plaintiff's husband, Hinzeman, had worked in the capacity of section hand several years. Before the present employment, he had served as foreman of a section gang on another part of the road. On this occasion he had served as foreman on this section about three weeks. His services as foreman altogether had been about three months. He was required to have, and did have, a time-table and a watch. He was instructed to study the time-table and to consult his watch, and from time to time compare his watch with watches of the conductors. He was also instructed to so regulate his work as to not unnecessarily obstruct the running of trains. The train in question was a regular passenger train, which left the Kansas City Union Depot at 8:10 that morning, and was due at the Southwest Junction at 8:25. It was on time. The Southwest Junction is about three-quarters of a mile east of the Milwaukee crossing. The engineer and fireman testified that as they approached the semaphore the whistle was sounded, whereupon, receiving the signal to come on, they proceeded on their course, running at the speed of about 25 miles an hour. After they...