Bennett v. Terminal R. Ass'n of St. Louis

• Decision Date: 29 February 1912
• Citation: 145 S.W. 433
• Parties: BENNETT v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

145 S.W. 433

BENNETT v. TERMINAL R. ASS'N OF ST. LOUIS.

Supreme Court of Missouri. Division No. 1.

February 29, 1912.

Motion for Rehearing Overruled March 29, 1912.

1. TRIAL (§ 139)—PROVINCE OF JURY—QUESTIONS FOR JURY.

Wherever plaintiff's case is supported by any evidence, or conflicting inferences may be deduced from the evidence, the question should be submitted to the jury.

2. RAILROADS (§ 275)—INJURIES TO LICENSEES—PERSONS PROTECTED.

Where a terminal railroad association owning large railroad yards employs an independent contractor to install a block system of signals in its yards, laborers employed by the contractor to work therein are privileged to be in or about the yards and use the same to the extent implied from their avocations, and for all reasonable and proper purposes of leaving and entering, though they are bound to act with due regard to the dangers arising from the necessary movement of the trains.

3. RAILROADS (§ 273½)—INJURIES TO LICENSEES—CARE REQUIRED.

Where a terminal association owning and operating large railroad yards employed an independent contractor to install a block signal system therein, it owed to laborers in the employ of the contractor that degree of care and watchfulness which an ordinarily prudent person would exercise under similar circumstances to prevent injury.

4. RAILROADS (§ 278)—INJURIES TO LICENSEES — CONTRIBUTORY NEGLIGENCE — LAST CLEAR CHANCE.

The rule that one having the last clear chance to avoid injuring another, who is in a position of apparent peril, whether negligent or not, must exercise ordinary care to avoid the injury, despite the negligence of the injured party, does not apply to a servant of an independent contractor installing a block signal system in defendant's railroad yards, who stood so near to a railroad track that he was injured by a passing train; it appearing that the engineer did not see him, or that he stepped into the position of danger from one of safety after having been warned of the approach of the train.

5. TRIAL (§ 178)—PROVINCE OF JURY—DIRECTED VERDICT — TESTIMONY OF ADVERSE PARTY.

Where defendant, after having introduced evidence, seeks to take the case from the jury on a peremptory instruction, plaintiff is entitled to the benefit of the probative force of testimony given on behalf of defendant, or any legitimate inferences therefrom.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by George Bennett, by his next friend Jennie Richards, against the Terminal Railroad Association of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed.

Plaintiff, 17 years of age, was an employé of a contracter who had been engaged by defendant to install for it a block system of signals for use in its tracks and yards in St. Louis and at other points. Plaintiff had been doing this work for six weeks or two months. It was the custom of defendant to provide for plaintiff and persons in the same service a "plug" train, which would take them to their work across the river in the morning and bring them back in the evening. This train stopped at a point in the city of St. Louis near which Eighth street extended to double tracks owned by defendant. The street did not cross these tracks, but laid entirely south of them. On the 8th of July, 1908, plaintiff, in company with his foreman and others, returned on this train to its stopping point, about 5:20 p. m. After they debarked, plaintiff was told by his foreman that the pay train would not be in that afternoon, and probably on that account the men would not be paid on that day. Plaintiff then observed that two of the men who had come over with him, and who had left while he was talking to his foreman, were about to enter into a curve which the defendant's two tracks describe at that point, and through which, over an elevation beginning at the point where plaintiff was standing, they proceeded across trestle works for about four blocks and then six blocks due west until they reached Union Station. Plaintiff's employers kept an office in the yards at Union Station, where plaintiff and his fellow workmen were paid, and plaintiff says he intended to use these tracks as a pathway to said office. At the point where plaintiff stood, there was an embankment about two feet above the surface, which was the beginning of the elevation of the two tracks, which increased until the trestles were reached. It was upon this embankment and the succeeding trestles plaintiff had seen the other men proceed. When plaintiff started to follow them, he says: "And in going on the highline I looked east and saw this train bearing down west bound, and with that I stepped on the north track and was standing there with the intention of letting that pass." That he was then struck by the tender of an engine which was backing eastwardly on the said north track and pulling a train of freight cars, causing the injury sued for—the loss of an arm and severe bruises about the jaw and face. The only time plaintiff looked to the west was when he observed his two companions taking that direction. He then saw nothing of the approaching freight train coming east-wardly over the north track, and he never saw that train at any time until it was so close to him that he could only make one step southwardly as he was struck by the tender of the engine. Plaintiff's exact language is as follows: "The only recollection I have of the train coming in an opposite direction is when it was just about on top of me. Then I have just a faint recollection of seeing it and making an effort to jump when it struck me, and that is as far as the recollection goes." Plaintiff stated that during his employment he had been nearly every day in the defendant's yards. He stated further, "But it was a known fact to be careful of trains, because we had talked about that often." At the time plaintiff was hit, he testifies he was 10 or 15 feet distant from the curve of the two tracks; that he did not remember whether he could "see around it or not"; that his impression was that the distance between the two tracks where he stood was 8 or 9 feet. The engineer in charge of the east-bound freight train was a witness for plaintiff, and testified that whilst his train was coming east at a distance of 340 feet he saw two men on the south track; that these men walked east on the south track; that he did not see either of them afterwards; that the tank of the tender obscured his view for a certain distance; and that he did not see the plaintiff when he was hit.

Defendant adduced evidence tending to prove that plaintiff was seen by a man who was stationed on the east end of the tender of the engine that was drawing the freight train eastwardly on its north track at a distance of 150 to 250 feet ahead; that he was then standing at a point between the north and south tracks close enough to the north track to be injured if he remained stationary until the freight train reached that point; that the two tracks at that point were 10 or 11 feet apart; that, when the plaintiff was seen, the whistle blew and the bell was rung, and the plaintiff turned and looked "and stepped into the clear" when the freight train had reached a distance of about 75 feet from him; that the plaintiff's injury was caused from his having run sidewise for some distance apparently to get on the moving train coming westwardly over the south track, and having moved backwards just as the tender of the east-bound train reached the place where he was. Another witness for defendant testified that he came over that afternoon with plaintiff on the "plug" train; that plaintiff proposed to him that they catch the east-bound train and ride in it over the south track to Union Station; that he warned plaintiff to look out for the freight train coming eastwardly over the north track, which witness called a "drag train"; that plaintiff answered, "All right;" that thereupon he went eastwardly, and about 100 feet from plaintiff found an open vestibule and got on the steps of the west-bound train, which had been stopped awaiting a signal before proceeding to the station; that it immediately moved westwardly in response to a signal, and as he approached the place where plaintiff was standing he "hollered" to him to look out for the east-bound train on the north track; that plaintiff seemed not to hear him, and he observed plaintiff back towards the east-bound train when it was only three or four feet distant from him; that plaintiff seemed to be looking for the opening of a vestibule door so he could catch the west-bound train; that he saw the tender of the east-bound train at...