O'Connell v. Missouri Pacific Railway Company

• Decision Date: 09 July 1910
• Parties: TIMOTHY O'CONNELL et al., Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

131 S.W. 117

149 Mo.App. 501

TIMOTHY O'CONNELL et al., Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

July 9, 1910

Appeal from Jackson Circuit Court.--Hon. Thos. G. Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

Elijah Robinson for appellant.

The court should have sustained defendant's demurrer to plaintiff's evidence. There was no evidence tending to show negligence on the part of the defendant. Powell v Railroad, 76 Mo. 80; Commissioner v. Clark, 94 U.S. 284; Bank v. Bank, 10 Wall. 639; Jackson v Hardin, 83 Mo. 175; Avery v. Fitzgerald, 94 Mo 207; Long v. Moon, 107 Mo. 338; Moore v. Railroad, 28 Mo.App. 622; Peck v. Railroad, 31 Mo.App. 123; Zurfluh v. Railroad, 46 Mo.App. 636; Peffer v. Railroad, 98 Mo.App. 291; Railroad v. Shirtle, 97 Pa. 450.

Guthrie, Gamble & Street, Boyle & Howell and A. F. Smith for respondent.

Deceased was not guilty of contributory negligence. O'Connell did not know, as stated by appellant, that King was not at the rear end of his train. That is a mere inference from King's testimony which is squarely disputed. No evidence is shown of any experience on his part sufficient to charge him with knowledge of any danger in the situation as a matter of law. He is entitled to the benefit of the presumption in favor of one deceased. He had the right to rely upon obedience to an order from his superior involving no danger.

OPINION

ELLISON, J.

Plaintiffs are the father and mother of Thomas O'Connell, who was in the employ of defendant at the time of his death. He was killed in the State of Kansas, through the alleged negligence of defendant. Plaintiffs recovered judgment in the trial court.

It appears that when one of defendant's trains arrived at the union station in Kansas City, Missouri, and discharged passengers and baggage, it is then taken in charge by a new crew employed for the purpose of taking the engine and empty cars some distance back into the yards maintained by defendant in the adjoining State of Kansas. This crew consisted of a hostler who acted as engineer, an assistant hostler, and a pilot who occupied the place of conductor and brakeman. The place for the pilot was on the rear end of the train. Defendant was killed in the nighttime. The train, just arrived, had discharged its passengers and this crew, consisting of Murphy as hostler or engineer, the deceased as assistant, and one King as pilot, took possession and began to back out of the station down to the yards. The train had proceeded in this backing movement some distance when Murphy and deceased discovered that a brake beam had become loosened and was dragging on the ground. They stopped the train and got down under the car to fix it sufficiently to proceed to the yards. King at the rear end (front, as they moved backward), not knowing what was the matter, walked up to the engine and found them at work under the car. It is said that he asked them what had occurred, but it does not appear that they knew it was King who asked the question. King then walked around the engine and started back to his position at the end of his train. Before he reached there, a freight train of twenty-four cars belonging to the Chicago & Alton Railway Company, backing into the station on the same track, collided with the standing train of defendant and moved it forward so that O'Connell was killed and Murphy was injured.

The evidence came near to being conclusive that it was King's duty to protect the rear of the train, and that it was inexcusable negligence for him to go up to the engine and leave his end of the train exposed. There is something said about his relying upon what is termed the "block system" and that he supposed the train was within the space where another train could not approach. But there was other evidence to show that the train was not thus protected and that if it was thought to be, it was his duty to be at the end, as an additional safeguard.

The only question of importance we need to consider is the point whether King's negligence was the proximate cause of the collision. Defendant insists that if King had remained at his post and signalled the Chicago & Alton train to stop, the collision would still have occurred. It is true that if the evidence shows the happening complained of would have occurred though there had not been any negligence, then such negligence cannot be considered as the proximate cause. [Killian v. Railroad, 86 Mo.App. 473; Richmond v. Railroad, 133 Mo.App. 463.] Defendant's position is based on evidence showing that the incoming Chicago & Alton train was composed of an engine and twenty-four freight cars and that besides the engineer and fireman there were two brakemen, one on...