Caldwell v. Missouri Pac. Ry. Co.

• Decision Date: 23 March 1904
• Citation: 181 Mo. 455,80 S.W. 897
• Parties: CALDWELL v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

80 S.W. 897

181 Mo. 455

CALDWELL v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 23, 1904.

MASTER AND SERVANT—INJURY TO BRAKEMAN— NEGLIGENCE—CONTRIBUTORY NEGLIGENCE —PRESUMPTION.

1. In an action against a railroad company for wrongfully causing the death of a brakeman who was crushed between the drawheads of cars which he was attempting to couple, evidence considered, and held insufficient to justify submission to the jury of the issue of defendant's negligence.

2. Rev. St. 1899, § 2873, declaring that every railroad corporation shall be liable for all damages sustained by any servant, while engaged in the operation of such railroad, by reason of the negligence of any other agent or servant, does not raise a presumption that an injury received by a brakeman while attempting to make a coupling was due to the negligence of the railroad company, where there is no proof that any other agent or servant of the company was negligent.

3. Where a brakeman went in between cars to make a coupling as the cars attached to the engine were moved slowly back in response to his signal, and stood in such a manner that he was crushed between the drawheads, although he might have easily and safely stood at either side of the drawheads, he was guilty of contributory negligence, as a matter of law.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Louisa C. Caldwell against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Elijah Robinson, for appellant. John N. Southern and S. W. Hilt, for respondent.

BURGESS, J.

This is an appeal from the judgment of the Jackson circuit court in favor of the plaintiff in the sum of $5,000 for the death of her husband, Gideon Caldwell, as a result of the alleged negligent and unskillful management of the defendant's agents and employés in charge of the engine, and freight cars attached thereto, by reason of which plaintiff's husband was caught between two of said freight cars and killed. The deceased was a brakeman upon the train which caused his death. "Plaintiff's husband was killed at Pixley Station, on the line of defendant's railway, a short distance east of Independence, Mo., about 7:30 a. m. on the 16th day of December, 1899. He was an experienced railroad man, and at the time of his death was in the employ of the defendant as a switchman. From Pixley Station, the point where the accident occurred, to Independence, there is a considerable upgrade, so that engines pulling heavy trains were accustomed to leave a part of the cars at said station, to be subsequently taken up the hill by another engine. The night before plaintiff's husband was killed, a number of cars were placed on the side track at said station, and early the next morning the switch crew, of which the deceased was a member, went from Independence to Pixley Station for the purpose of taking these cars to Independence. The crew was composed of Noah Storms, foreman; Caldwell, plaintiff's husband; and Peacock, switchman; E. I. Gorsuch, engineer; and J. H. Sechrist, fireman. They all went to Pixley Station in the switch engine, and when they arrived there the engineer ran the engine on to the side track where these coal cars were standing, and it was coupled to the car at the west end of the string. This was done either by Peacock or Caldwell, it being a duty that might properly be performed by either of them. Thereupon Storms, the foreman, Peacock, and Caldwell started east along the south side of said string of cars; Storms to take a memorandum of the numbers of the cars, and Caldwell to inspect the cars and see that they were in good condition. There were some eighteen or twenty cars in the string on the side track, but they intended to move only eleven of them. A portion of those which they intended to move were coal cars, and a portion of them box cars; the coal cars being at the west end of the string next to the engine. All three of them went west along the south side of said string of cars until they reached the first box car, and then Peacock got on this box car for the purpose of releasing the brakes. He proceeded east along the tops of the cars, releasing the brakes, until he reached the eleventh car from the engine; that being the easternmost car of those which were to be moved. Storms and Caldwell proceeded east along the south side of the cars until they reached said box car. Thereupon Storms gave a signal for the engine to move forward, in response to which the...