Carter v. St. Louis & S.F. Ry Co.

• Decision Date: 16 March 1923
• Docket Number: No. 3135.,3135.
• Citation: 249 S.W. 124
• Court: Missouri Court of Appeals
• Parties: CARTER v. ST. LOUIS & S.F. RY. CO.

249 S.W. 124

CARTER v. ST. LOUIS & S.F. RY. CO.

No. 3135.

Springfield Court of Appeals. Missouri.

March 16, 1923.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by Richard S. Carter against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. F. Evans, of St. Louis, McReynolds & McReynolds, of Carthage, and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, for respondent.

COX, P. J.

Action for personal injury from being struck by an engine of defendant. Verdict and judgment for plaintiff, and defendant appealed.

Plaintiff was in the employ of defendant as a section hand. He worked on a section extending from Quapaw, Okl., to Baxter Springs, Kan., and this suit is brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). At the time of the injury, plaintiff and three other men were working under a foreman as section men. Plaintiff alleged that for a long time before the injury complained of it had been the custom of the section foreman to look out for trains that might pass over the track and give warning of the approach of a trian in time for the workmen to step off the track and avoid being hurt, and also alleged that the foreman had specifically told the men that he would look out for the trains and give notice of their approach. He then based his right to recover on the failure of the foreman to give warning of an approaching train by reason of which he was struck and injured. The answer pleaded certain statutes of Kansas and also a general denial and contributory negligence and assumption of risk.

While plaintiff was working just outside the rails, but so near the track that a train could not pass without striking him, a train approached from his rear, which he testified he did not see or hear, and struck and injured him. There was some evidence on the part of plaintiff tending to prove both the usual custom of the section foreman to watch for and give warning of approaching trains, and also that he had stated to the men under him, including plaintiff, that they were to work, and he would watch for the trains and give warning when they approached. This was denied by the foreman and two of the men who worked with plaintiff, but we cannot pass on the question of the preponderance of the testimony, and in disposing of the questions involved in this appeal we must do so on the basis of there having been some substantial evidence to support the allegations of plaintiff's petition.

Appellant insists that its demurrer to the testimony should have been sustained for the reason that a track worker must look out for his own safety, and no duty rested on defendant to warn him of an approaching train, and the foreman, under whom plaintiff worked, could not bind defendant by adopting a custom to do something defendant was not required to do. As a general proposition, appellant's contention is right. In the absence of any other provision, a man working on the track of a railroad must know that trains pass over the track, and must look out for them and take care of his own safety Degonia v. St. Louis, I. M. & S. R. Co., 224 Mo. 564, 123 S. W. 807; State ex rel. Lusk v. 3Ilison, 271 Mo. 463, 196 S. W. 1088; Cabal v. St. Louis & S. F. R. Co., 251 Mo. 257, 158 S. W. 12; Nivert v. Wabash R. Co., 232 Mo. 626, 135 S. W. 35; Evans v. Wabash H. Co., 178 Mo. 508, 77 S. W. 515. Many other cases in this state and elsewhere might be cited affirming the same rule, so that question is settled.

If there were no showing in this case except that plaintiff was a section hand working on the track, and while so engaged he was struck and injured by a passing train, there would be no doubt that he could not recover. Plaintiff's case does not rest there, but is based on the contention that the section foreman, whose orders he must obey and who controls his work and determines how it must be done, had assumed to watch for the trains and notify workmen when to cease work and move away to avoid being hurt, and the right of plaintiff to go to the jury in this case hangs upon the right of the section foreman to take upon himself the obligation to look out for trains and warn the workmen of their approach and thereby relieve the workmen of their general duty to look out for themselves. We see no reason why he may not do that. He has full charge of the work to be done in keeping the track in repair. He hires and discharges men at his pleasure. The men must follow his directions and obey his commands or quit the advice of the railroad. It was the duty of the section foreman, as it is the duty of all employees, to render efficient service to his employer and to see that those under him render the same kind of service. If, therefore, in his judgment, more work could be done in a day by his watching for the trains, and thereby relieve the workmen of the necessity of diverting their attention from their work in order to look for trains themselves, we see no reason why, in the absence of direction from his superior, he may not do so. The right of the workmen to rely on the foreman to give the warning of approaching trains might be brought into existence by an established custom, as well as by direct command from the foreman. Lancaster v. Atchison, T. & S. F. R. Co., 143 Mo. App. 163, 127 S. W. 607; St. Louis & S. F. Ry. Co. v. Jeffries, (C. C. A.) 276 Fed. 73, 75; Erickson v. St. P. & D. R. Co., 41 Minn. 500, 43 N. W. 332, 5. L. R. A. 786; Anderson v. Northern Mill Co., 42 Minn. 424, 44 N. W. 315.

Plaintiff in this case testified to both the custom and command of the foreman. He was the only witness who testified that the foreman had ever told them to keep at their work, and he would watch for the trains and give them warning. He testified to having heard the foreman make the statement to him and the other men about every week or 10 days during the time he had worked there, while none of the other three men who...