Barry v. Hannibal & St. J. Ry. Co.

• Citation: 98 Mo. 62,11 S.W. 308
• Court: United States State Supreme Court of Missouri
• Decision Date: 23 March 1889
• Parties: BARRY v. HANNIBAL & ST. J. RY. CO.

11 S.W. 308

98 Mo. 62

BARRY v. HANNIBAL & ST. J. RY. CO.

Supreme Court of Missouri.

March 23, 1889.

INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

1. In an action against a railroad company for causing the death of plaintiff's husband, it appeared that deceased, an engineer in defendant's employ, pulled his train in on a switch to clear the main track for a passenger train then due. He could not see to the rear of his train from either side of the cab, on account of obstructions, and at a call from the rear brakeman stepped on the main track, and directed the fireman to move the train forward. While standing on the track, and looking to the rear of his train, a hand-car with sectionmen on it ran over him. The car was run at a very rapid rate of speed. When at the depot, the sectionmen could see to and beyond the place where deceased was standing. Held, that they were guilty of such negligence as to render defendant liable.

2. Plaintiff's right to recover was not defeated by the fact that at the time of the accident he was violating a rule of the railroad company, forbidding engineers to permit firemen to operate the engine, except when they are themselves present upon them, there being evidence to the effect that at the time of the accident, and for years before, there was an established usage on the part of defendant's engineers, known and acquiesced in by the superior officers, to allow firemen to make short moves, the engineer not being at the time on the engine, but near enough to give directions.

3. Under the circumstances, deceased was not guilty of contributory negligence in stepping off from the engine upon the main track to get the signals from the brakeman.

Appeal from circuit court, Linn county; G. D. BURGESS, Judge.

Action by Jane Barry, widow of Timothy Barry, against the Hannibal & St. Joseph Railway Company, to recover damages for the death of her husband, caused by the alleged negligence of defendant's servants. Judgment for plaintiff, and defendant appeals.

Strong & Mosman, for appellant. S. P. Huston, H. Lander, and A. W. Myers, for respondent.

BLACK, J.

The widow of Timothy Barry brought this suit to recover damages for the death of her husband. From the evidence, it appears that defendant's road at Stewartsville runs in an east and west direction. Barry, who was an engineer in the employ of the defendant, pulled his train of 28 freight-cars in at the west switch between sundown and dark, to clear the main track for a west-bound passenger train then due. The head brakeman went forward to couple some loose cars standing on the side track, that they could be moved forward out of the way. When Barry stopped his train, he supposed it was in on the side track. He could not see to the rear of it from the south side, because of some cattle-pens, nor from the north side of the cab, because of a curve in the road to the south of the west switch. He got down on the ground to examine his engine, and while there he heard a call from the rear brakeman, who stood on the main track some 18 car lengths from the engine. Barry stepped to the north six or seven feet, to and on the main track. He then directed the fireman to move the train forward. While standing on the main track, and looking to the rear of his train, a hand-car with five or six sectionmen on it came from the east, ran over him, and inflicted the injuries from which he died, and the plaintiff's cause of action is predicated on the negligence of these sectionmen. These sectionmen were running their car at a very rapid rate of speed, evidently to keep in advance of the passenger train. They reached the depot at 7:30, and the passenger train was due at 7.22, so that they were on the time of the passenger train. When at the depot they could see to and beyond the place where Barry was hurt. He stood some 400 feet west of the depot. Hadley, one of the men on the hand-car, testified that he was facing west, and kept a sharp lookout; that they were about 150 yards from the engine, when they saw a clear track; that when they got a little further the engine began to move, and the escaping steam obscured their vision, so that they did not see Barry until they got within 40 or 50 feet of him. The witness says that up to that time he could have seen a man on the track, but he saw no one. The evidence of the fireman and two brakemen is to the effect that Barry stood on the main track not less than 5 or 10, and not more than 30, seconds before the steam began to escape. The evidence shows that it was not, in general, the duty of the engineer to leave his engine to receive signals, but that it was the duty of the brakemen to put themselves in a position to be seen by the engineer or fireman. The defendant put in evidence rule 41, which, it is conceded, relates to engineers and firemen, and is in these words: "(41) They must not permit the firemen to operate the engine, except when they are themselves present upon them. Both the engineer and fireman must remain upon the engine while it is at work." There is, however, much evidence to the effect that at the time of the accident, and for years prior thereto, it had been the constant custom of engineers on the defendant's road to allow their firemen to make short moves like the one in question, the engineer being near at hand, but not on the engine at the time. This custom is shown to have prevailed at all stations, except terminal points, where hostlers take charge of the engines on their arrival.

1. The point made by the appellant that there is no evidence of negligence on the part of the sectionmen is clearly not well taken. They knew the trainmen were at their accustomed work with the train, and that these trainmen would be on the watch for the hand-car, for the usual working hours of the sectionmen were from 7 to 6 o'clock. Instead of taking their car off the track, and waiting for the passenger train to pass, they came to the depot in great haste, and the evidence tends to show that, though then out of danger, they did not attempt to slacken their speed. As Barry was on the main track from 5 to 30 seconds before the steam began to escape, it may be inferred that the sectionmen were not on close watch of the track in advance of them, and if they had been they would have seen him. There is abundant evidence tending to show that they did not manage the car as prudent persons would do under the circumstances, and this is the standard by which the question of negligence on their part should be determined.

2. The position taken by the appellant that Barry should be held guilty of contributory negligence on a demurrer to...