Beale v. The Kansas City Southern Railway Co.
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 853,169 Mo.App. 727 |
| Parties | JAMES BEALE, Respondent, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
Cyrus Crane and Geo. L. Mersereau for appellant.
Boyle & Howell for respondent.
Plaintiff 's action is to recover damages for personal injury received while engaged in defendant's services. He obtained judgment in the circuit court.
The case, as presented by the respective parties, stands altogether on the question whether the evidence made out an issue of fact in such substantial way as to justify the court in submitting it to the jury. We must therefore consider the evidence in plaintiff's behalf as presenting the facts and must reject as untrue all contradictions which may be found in the evidence for defendant. [Cornelius v. Cornelius, 233 Mo. 1, 135 S.W. 65.] The evidence thus to be considered shows that plaintiff was a machinist of experience and had worked for defendant for several years. Defendant maintained a roundhouse in what is known as the east bottoms towards the northeastern part of Kansas City, Missouri, and in this was a small machine shop. It also maintained a station some distance west of this, at Second and Wyandotte streets. It was customary to send switch engines from the roundhouse up to this station, and plaintiff had frequently helped in taking an engine to that place.
On the afternoon of February 4, 1911, the foreman directed McCumber a locomotive "hostler," and a young man as "helper" to take an engine up near the station and deliver it to a switching crew. He sent plaintiff along with these two as a "protection." That is, the helper being young and inexperienced, and there being several streets and tracks to cross, plaintiff was sent along as a precaution. The engine was run out on a track leading at some distance away to the eastbound main line track with which it was connected by a switch. Getting onto the east-bound track it's course was west to a "crossover" onto the main line west-bound track and thence it would proceed west to destination. This case concerns the point at the switch connecting the roundhouse track with the east main line just referred to.
Just before reaching the switch, a long train of freight cars forty in number belonging to defendant, was pulled east on the main line over the switch and stopped with the rear car close to the switch at the point where the engine would have to pass in to go west on the same line. McCumber stopped the engine and the boy helper got off and went forward to throw the switch. The rear car of this freight train was so close to the switch that McCumber had doubts whether there was room to get by, or, as expressed by him, whether there was sufficient "clearance," and he asked plaintiff what he thought. Plaintiff said he thought there was. He also called to the boy who was up at the place...
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