Cull v. McMillan Contracting Co.

• Decision Date: 02 July 1915
• Docket Number: No. 11661.,11661.
• Citation: 178 S.W. 868
• Parties: CULL v. McMILLAN CONTRACTING CO.
• Court: Missouri Court of Appeals

178 S.W. 868

CULL v. McMILLAN CONTRACTING CO.

No. 11661.

Kansas City Court of Appeals, Missouri.

July 2, 1915.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

"Not to be officially published."

Action by Patrick Cull against the McMillan Contracting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. P. McCammon, of St. Louis, John J. Cosgrove, of Kansas City, and R. M. Sheppard, of Joplin, for appellant. Isaac B. Kimbrell and Horace S. Kimbrell, both of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff sues for personal injuries alleged to have been caused by defendant's negligence. He was a day-laborer in the employ of Anderson & Dunne, a copartnership. As a part of the immense project of building Kansas City's new Union Station it was necessary that certain grading be done, and that a sewer be constructed upon ground belonging to the Chicago, Burlington & Quincy Railway Company. Anderson & Dunne had the contract for the construction of the sewer, and the defendant, McMillan Contracting Company, had the contract to do the grading. In doing this grading, the defendant used a temporary railway track over which it ran small dump cars in which to haul the dirt away. This temporary track ran north and south, and the sewer was being laid in the same direction, parallel to, and about 30 feet west of, the track. In the sewer work Anderson & Dunne used a portable derrick, which was moved north from time to time as the laying of the sewer progressed. The temporary railway track was also moved from time to time as the exigencies of defendant's work demanded. The derrick was between the railway track and the sewer being laid, and this made it necessary to place one end of the derrick very near the track. On the morning of the injury it became necessary to move the derrick further north, and it was therefore moved to the point desired, and it then became necessary to make its footing level. While this was being done one of defendant's train of empty dump cars came along drawn by a small engine. The derrick, of necessity, being very near the track, the foreman, under whom the work on the sewer and the derrick was being done, signaled the engineer to slow down in going past the derrick, and the engineer did so, going past it very slowly, and he was thereby enabled to pass without striking it. In the course of 30 minutes or an hour the engineer returned with his train loaded with dirt, but did not slow down as he did before, but went by at the rate of about six miles per hour. The foreman signaled him, as before, to slow" down, and ran toward the track, endeavoring to attract the engineer's attention but without success. It seems that on this unballasted temporary track the dump cars, when loaded, sway from one side to the other, more than when they are empty, and this swaying increases with the speed at which the cars go. Hence these loaded cars, going at six miles per hour past the derrick, swayed outward and struck it, causing it to veer around and knock plaintiff off a wall on which he was standing at a point about 30 feet from defendant's track. Plaintiff had that morning gone to work for Anderson & Dunne and had spent the forenoon about 150 feet from the derrick, working at something wholly disconnected therefrom. About 15 or 20 minutes before the loaded train passed the derrick, plaintiff had been called by his foreman to come down there and assist in getting tie derrick leveled, and plaintiff was on the wall, about 7 feet above the ground, with his back to the train when it came by the second time as above stated.

It thus appears that the engineer and plaintiff were working for different masters, each engaged in carrying out their respective contracts with no connection or relation existing between them except that the scenes of their labor were side" by side and in close proximity to one another. Plaintiff, therefore, had a right to be where he was, and the derrick was also rightfully where it was. It will be observed also that plaintiff himself was at least 30 feet from the track and, at least so far as he knew, was in an apparently safe position when defendant's trains would pass. Of course the other end of the derrick was close to the track, but, as cars had safely passed it before when care was taken, he could not be charged with contributory negligence, as matter of law, in not watching to see the result of the passing cars and in failing to get out of the way when danger therefrom arose.

Under these conditions and circumstances, it was the duty of the engineer, in carrying on his master's work, to observe ordinary care, commensurate with the danger known to exist, to keep from striking the appliances of the other enterprise necessarily placed near the track, and thereby avoid injuring the workmen engaged thereabout.

It is also apparent from these facts that the engineer not only could have known of the danger of rapidly passing the derrick, but that he actually knew of it, since he was signaled to go by slowly just before that, and had managed to pass without striking the derrick only by the use of care in going very slowly. The evidence was that in the interim between the engineer's going by the first time and his passing the second, the location of the derrick had not been changed nor brought nearer to the track, but that the work being done about it was merely to get it level. Therefore a failure of the servant to observe care in passing the derrick under the foregoing circumstances constituted negligence for which his master is liable.

The petition alleged that the defendant corporation saw, or could have seen, that the derrick was so near the track that trains could not safely pass, and carelessly and negligently, without warning to plaintiff, ran the train against the derrick. The answer of defendant alleged that if plaintiff was injured, it was caused by the negligence of plaintiff and his coemployés, which directly contributed thereto, and that defendant was under no obligation to provide plaintiff with a safe place to work. It is claimed that, as the petition says:

"Said corporation carelessly and negligently, without warning to plaintiff, ran the train against the derrick," etc.

—the use of the words "without warning to plaintiff" charges a specific act of negligence in addition to the general charge of negligence...