Boles v. Hines

• Decision Date: 16 December 1920
• Docket Number: No. 2839.,2839.
• Citation: Boles v. Hines, 226 S.W. 272 (Mo. App. 1920)
• Parties: BOLES v. HINES, Federal Agent.
• Court: Missouri Court of Appeals

226 S.W. 272

BOLES v. HINES, Federal Agent.

No. 2839.

Springfield Court of Appeals. Missouri

December 16, 1920.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Action by Thomas D. Boles against Walker D. Hines, Director General of Railroads, now Federal Agent. Directed verdict for defendant, new trial granted, and defendant appeals. Reversed and remanded, with directions.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellant.

J. L. Van Wormer and O. F. Wayland, both of West Plains, for respondent.

STURGIS, P. J.

This suit was brought by plaintiff to recover damages for personal injuries received by him while in the employ of defendant by being struck by a moving engine at Carbon Hill, Ala. We will speak of the railroad as defendant, though the action was properly brought against Director General Hines, who was operating same for the United States government.

The plaintiff, when injured, was a member of a gang of carpenters engaged in repairing the depot building at Carbon Hill, a small town. The railroad runs east and west, and the depot is on the north side of the main track. The large timbers on which the building rested had decayed, and a new foundation was being put in and the building raised. To do this it was necessary to dig a trench about a foot and a half in depth along the edge of the foundation. Between the depot and the main track of the railroad was a platform some 12 feet wide, and in excavating this ditch the dirt was placed on this walk making a ridge about the same height as the depth of the ditch and sloping off toward the railroad track. A space was left unobstructed in front of the depot door for passengers and others to pass back and forth. The plaintiff was excavating this ditch along the south side of the depot next to the railroad track; and when same was nearly done he stopped excavating, laid down his tools, and started after a board or timber to be used in the work and which was to be procured from a pile of lumber near the east end of the depot and on the same side of the railroad. In doing this the plaintiff stepped out of the ditch and over the ridge of dirt and went so near the track that he was struck by the tender of a passing engine backing west along this track. Plaintiff did not see or hear the engine. In describing his own action at the time of the injury he said:

"I backed out of the ditch. I was down in the ditch and I backed down here and jumped out here (indicating on plat). I backed out there and jumped over the dirt, and that is where the engine struck me. I probably made one or two or three steps. I made two or three steps after I got out of the hole. After I got to the place where I was struck I was hit instantly. I did not look before I got near enough to the track to be struck. If I had looked I could have seen it (the engine) one-half or three-quarters of a mile."

He further says that he did not quite get on the track, but was close enough to be struck by the tender; that he did not hear or see the moving engine or hear any signal of bell or whistle. The evidence shows that there were switch tracks both north and south of this main track; that the engine in Question was a switch engine; that the accident happened at midday, and this engine had been engaged in switching all that morning, mostly on the tracks south of the depot. The engine was going from one end of the switchyard to the other and used the main track in so doing.

There is little, if any, material conflict in the evidence. Two or three bystanders tell substantially the same story. One of them closes by saying that when he saw the plaintiff going over the ridge of dirt in front of the engine he hollooed to him, but that he either did not hear because of the noise of the engine or it was too late. The fireman was on the side of the engine from which plaintiff came in front of it, and says that as the engine was backing past the depot he was looking in the direction they were going; saw plaintiff step over the ridge of dirt and take one or two steps toward the track; that he hallooed to him and to the engineer, who at once applied the brakes, but it was too late. The engineer did not see plaintiff as he started from the ditch toward the track because the engine obstructed his view. He says he applied the brakes and stopped the engine as quickly as possible when the fireman gave him the warning; that he did not sound the whistle, as he did not have time to do both. The fireman and engineer both say the bell was being rung as they approached and passed the depot, but plaintiff and his witnesses say they did not hear any such signal. The speed of the engine was given by the train men at 6 or 7 miles per hour. Plaintiff's witnesses say 12 or 15 miles per hour. The trial court at the close of the evidence directed a verdict for defendant, but later granted a new trial, and from such order defendant appeals.

The negligence charged in plaintiff's amended petition is in these words:

"That the employees of the defendant in charge of said engine and tender knew, or by the exercise of ordinary care could have known, that the plaintiff and other carpenters were engaged in work in and around the south of said depot building and perilously near said main track of defendant's railroad, and that said employees saw, or by the exercise of ordinary care could have discovered, the plaintiff in such position of peril in time to have warned him of the approach of said engine by sounding the bell or whistle of the locomotive, or in time to have stopped or checked the speed of the engine and tender and avoided injuring him, but that said employee negligently and carelessly failed to either give such warning or to stop or check the speed of the locomotive, which at and prior to the time it struck plaintiff was running at the speed of about 15 miles per hour; that at said time said engine was coasting and made no sound and was running. backwards, going west, with the tender towards plaintiff, and there was no lookout or person to keep the track clear and give warning."

Plaintiff's theory of his case is that he was employed in interstate commerce, and, since defendant is conceded to have been engaged in such commerce, that his cause of action is governed by the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), which excludes contributory negligence as a defense and allows it only in reduction of damages. It seems to us, however, that plaintiff charges negligence only with respect to the humanitarian rule, and certainly the facts limit the charge to such rule. The humanitarian rule disregards and overrides the contributory negligence of the plaintiff in putting himself in a...