Cahill v. Chicago & A. Ry. Co.

• Decision Date: 11 June 1907
• Citation: 103 S.W. 532,205 Mo. 393
• Parties: CAHILL v. CHICAGO & A. RY. CO.
• Court: Missouri Supreme Court

103 S.W. 532

205 Mo. 393

CAHILL v. CHICAGO & A. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

1. EVIDENCE — PRESUMPTION — AVOIDANCE OF DANGER—DUE CARE—ACTION FOR DEATH.

Where, in an action for death, there was no evidence as to how deceased came to his death, except that he was run on and killed by defendant's engine, there being no eyewitnesses to the accident, and the manner of occurrence being only ascertainable from circumstances, an instruction that, in the absence of proof to the contrary, the jury should presume that at the time deceased was struck and killed he was in the exercise of ordinary care, was not error.

2. MASTER AND SERVANT—DEATH OF SERVANT —RAILROADS—INSTRUCTIONS.

Where, in an action for death of a railroad trackman while sweeping snow from a switch, by being struck by an engine backing toward him, it was proved that a switchman always preceded the engine, either walking ahead of it, or riding on the rear of the tender as it backed from the roundhouse, and that it was the custom of the railroad company to send a sufficient force of men to the tracks in the yards during snowstorms, as on the night of the accident, to clear the switches of snow, and that the engineer in charge of the engine that struck deceased must have known such fact, it was not error for the court to assume that deceased's presence on the track was known to defendant, its agents or servants in charge of the engine, or could have been known to them in the exercise of ordinary care.

3. TRIAL—CONFLICTING INSTRUCTIONS.

In an action against a railroad company for death of a trackman by being struck by an engine backing out of a roundhouse at night, an instruction that if the presence of deceased on the track was known to defendant, its agents or servants in charge of the engine, or could have been known to them by the exercise of ordinary care on their part, etc., did not conflict with an instruction that there was no proof of defendant's negligence in not having discovered decedent at or near the track in a position of peril in time, by the exercise of ordinary care, to have avoided injuring him.

4. TRIAL—ASSUMED FACTS.

Where, in an action for death of a railroad trackman, defendant answered alleging that decedent's injuries were caused by his own negligence and want of care, at the time and under the circumstances described in the petition, and all the evidence showed that decedent was killed by an engine on a track leading from a roundhouse, an instruction assuming that such was the fact was not error.

5. MASTER AND SERVANT—DEATH OF SERVANT —CONTRIBUTORY NEGLIGENCE.

Decedent, who had been working for defendant railroad company in its yards for about two years, was required on the night he was killed to sweep snow from the switches. In order to do this work it was necessary that he go between the tracks. With knowledge of the time that an engine would back out of the roundhouse to pull an incoming passenger train, he allowed himself to be struck and killed thereby, when it was making the ordinary noise of an engine operated by its own steam and running at a speed not exceeding three miles an hour. Decedent's vision or hearing was unimpaired, and even when the engine was 10 feet away from him he could have stepped aside and avoided the collision. Held, that decedent was negligent as a matter of law.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by Fannie Cahill against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Scarritt, Scarritt & Jones, for appellant. Robertson & Robertson, for respondent.

BURGESS, J.

Plaintiff, the widow of James Cahill, deceased, brought this suit in the circuit court of Randolph county, at Moberly, Mo., against the appellant and one Rufus McCormick, the locomotive engineer of said company, for $5,000 damages, for negligently and carelessly backing upon and over deceased one of the engines and tenders of defendant company, of which said McCormick was at the time in charge and control as the servant of the company, and killing him, said Cahill. The accident occurred on the morning of February 15, 1903, and suit was begun on July 25, 1903. On the first day of the September term, after the filing of the petition and bond for removal to the federal court for the Northern division of the Eastern district of Missouri, at Hannibal, the petition was denied; but the defendant company, as it might do, took a transcript of the record and filed it in the federal court, where said cause remained until the 7th day of January, 1904. The plaintiff then filed her motion to remand, which coming on to be heard before Judge E. B. Adams, sitting as a circuit judge, the said cause was remanded to the state court, and a certified copy of the order remanding the cause was filed with the clerk of the circuit court at Moberly, Mo., February 15, 1904. On September 13, 1904, the defendants filed separate answers. The answer of the railway company was a general denial, and a plea of contributory negligence and assumption of risk. The answer of McCormick was, first, a general denial, and then an allegation that the alleged injury, if due to any negligence of any agent or servant of the defendant railway company, which this defendant denied, such negligence was that of a fellow servant of the said James Cahill, working together with him at the time and place mentioned, in a common purpose, and that, as to the liability of this defendant, such negligence, if any, and the injuries resulting therefrom, were within the risks and perils of the said James Cahill's employment, and were assumed by him in his said employment. The action was tried in the circuit court at the September term, 1904, before the court and a jury, resulting in a verdict and judgment in favor of the defendant, McCormick, for costs, and in favor of plaintiff and against the railway company for the sum of $5,000. After unsuccessful motions for new trial and in arrest, the defendant company appealed.

The facts out of which this action grew are substantially as follows: The deceased, James Cahill, worked for the defendant railway company in its yards at Slater, Mo., where it maintained a division, and where it owned and used a large number of tracks. On the night of February 14, 1903, there was a heavy fall of snow, and a force of men, including the deceased, was required to remain in the yards during the night to keep the switches cleared of snow. Frank Cahill, brother of the deceased, was section foreman, and he remained with the men until about 2 o'clock next morning, when he went home, leaving the deceased in the yards, with instructions to keep the switches cleared of snow. He also instructed him to go ahead of a certain engine called the "Hummer" engine, which left the roundhouse in the morning, and see that there was no snow or ice on the switches ahead of it. The deceased carried with him a lantern and a broom, the latter for the purpose of clearing the snow off the rails, and it would appear that in order to perform his work it was necessary to go between the tracks and clean the snow away from the points of the rails at the switches, and that, to do this effectively, it was often necessary to stoop or kneel down while working. The engine in question, No. 251, was backed out of the roundhouse some time before 6 o'clock on the morning of February 15, 1903, for the purpose of pulling a passenger train called the "Hummer" from Slater to Kansas City, and which left Slater at 6:10 a. m. The track on which the engine backed out was called the "coming-out track," and ran by a water tank, and in order to reach the main track it was necessary for the engine to cross several side tracks and switches and also the public road which crossed the tracks. On this occasion the tender of the engine was filled with coal, and backed out to the water tank by the hostler, and then the engineer, Rufus McCormick, took charge of it. After the engine's tanks were filled with water, it was backed away slowly from the water tank towards the main track by the engineer, and it would appear that the deceased was struck by the engine or tender at a switch about 150 feet east of the water tank, and was dragged along several hundred yards, to the last switch at the main track, where the body fell off and was found. It was yet quite dark, and nobody saw the deceased struck. Neither the engineer nor fireman knew anything about it until after the engine had arrived at the depot on the main track. At the first switch east of the water tank there was found a portion of deceased's clothing, also blood and pieces of flesh, and the track or imprint of the body as it was dragged along was easily traceable through the snow from the point where it was struck to the point where it was found. The handle of the broom carried by the deceased was cut in two, and his lantern was found beside the track at the point where he was struck.

The testimony on the part of the plaintiff differs widely from that for the defendant, especially as to signals. According to the testimony of George Adams, one of plaintiff's witnesses, who worked in defendant's roundhouse, and who was on the tender of the engine while its tanks were being filled with water, the engine was backed away from the water tank and passed over the first switch without any signal whatever. He noticed a headlight on the engine, but stated that there was no light on the rear end or tender as it backed away. There was a small light hanging from the roof of the cab, but this, he said, could not be seen from the direction the engine was moving, on account of the fact that the tender was piled full of coal and obscured it. Witness said that the track curved east of the water tank, and that the engineer from the position he occupied could not see a person on the track ahead of him, as the coal on the tender was piled so high that he could...