Davison v. Hines

• Citation: 246 S.W. 295
• Decision Date: 18 December 1922
• Docket Number: No. 22338.,22338.
• Parties: DAVISON v. HINES, Director General of Railroad, et al.
• Court: United States State Supreme Court of Missouri

246 S.W. 295

DAVISON v. HINES, Director General of Railroad, et al.

No. 22338.

Supreme Court of Missouri, Division No. 1.

December 18, 1922.

Motion for Rehearing Denied December 30, 1922.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by William J. Davison against Walker D. Hines, Director General of Railroads, and another. From judgment for plaintiff, defendants appeal. Affirmed.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for appellants.

Randolph & Randolph, of St. Joseph, for respondent.

Statement.

BROWN, C.

Petition filed in said court on July 2, 1919, against Walker D. Hines, Director General of Railroads, and the Chicago Great Western Railroad Company, returnable to the October term, 1919, and summons was duly issued and served upon both defendants. On September 10, 1919, in vacation, plaintiff filed an amended petition, making A. J. Haynes and S. G. Scott parties defendant, and summons was issued against them, returnable at the same October term, which was duly served. At the October term, 1919, of said court the cause came on for trial and was dismissed by plaintiff as against the railroad company. It was submitted to the jury upon the evidence as to the other defendants whereupon a verdict was returned against the defendants dines and Scott for $10,000, from which this appeal was, after the overruling of motions for a new trial and in arrest of judgment, taken to this court.

The petition states, in substance, that at all times to which it refers the defendant Hines was operating the Chicago Great Western Railroad as Director General of Railroads for the United States, and that the defendant Scott was employed by him as foreman of the switching crew at St. Joseph, a city of the first class in this state. That the following ordinances were then in force in said city:

"Sec. 1055. Every locomotive engine, railroad car or train of cars running in the nighttime on any railroad track in said city shall have and keep, while so running, a brilliant and conspicuous light on the forward end of such locomotive engine, car or train of cars."

"Sec. 1057. The bell of each locomotive engine shall be rung continuously while running within said city."

That on May 31, 1919, the plaintiff was employed in said city by one J. N. Norris, a dealer in poultry and eggs. One of his duties in said employment was to prepare and load on railway cars for shipment to various points in the United States live poultry, and to attend and accompany the same in course of shipment by rail to various places in the United States, to take care of such poultry, and for that purpose to ride in the way car of trains in which such poultry was being transported, being provided by the contract of shipment with the necessary transportation therefor. That on said day he had prepared and loaded into a freight car of said Chicago Great Western Railway a carload of live poultry, which was, by defendant Mines, operating said railway as aforesaid, to be taken into one of his trains thereon and carried to its destination in the city of New York; that after he had finished the loading of said car it was the duty of plaintiff to be about the yard and tracks of defendants to look after such shipment, and to enter the way car of the train in which it should be incorporated, and to accompany and care for it to its destination. The petition proceeds to state the circumstances of the injury as follows:

"That while plaintiff was crossing said railroad tracks in the switchyard aforesaid for the purpose of entering the way car as aforesaid, the defendants Chicago Great Western Railroad Company and Walker D. Hines, Director General of Railroads for the United States of America, acting through its engineer, defendant A. J. Haynes, and its switch foreman, defendant S. G. Scott, and the defendants A. J. Haynes and S. G. Scott carelessly and negligently operated the defendant's, Chicago Great Western Railroad Company and Walker D. Hines, Director General of Railroads for the United States of America, cars while switching said cars so as to run its freight cars on to, over, and against this plaintiff, doing great injury to the plaintiff's right leg, which thereby necessitated the amputation of said leg above the knee, and carelessly and negligently ran and switched said train of cars without keeping a lookout thereon for persons in and about said railroad tracks, and carelessly and negligently failed to see plaintiff upon said track when the said defendants, Chicago Great Western Railroad Company, Walker D. Hines, Director General of Railroads for the United States of America, A. J. Haynes, and S. G. Scott, in the exercise of ordinary care could, would, and should have seen the plaintiff upon said tracks in time to have avoided running over plaintiff, and have warned him of the danger which he was then in, but carelessly and negligently failed to do so, and the defendants aforesaid were careless and negligent in the operation of the railroad cars aforesaid, in that, while switching same, they maintained no lookout on said cars while they were being switched; that it was a part of the duty of the defendant S. G. Scott to be upon said cars and maintain a light thereon while same were being switched; that no light was on said cars while same were being switched, in violation of section 1055 of the ordinances of the city of St. Joseph herein set out.

"That it was the duty of the defendants through defendant A. J. Haynes to sound a bell or warning while said cars were being switched, and that no warning was given as required by General Ordinance of the City of St. Joseph, section 1057, as herein set out.

"That said cars were being switched by defendants without an engine attached thereto, that is, said cars had been pushed with great force and violence by defendants' engine, operated and switched by all of the above-named defendants, and the engine detached therefrom, and said cars allowed to remain in motion; that said cars while being so carelessly and negligently switched ran on to and against plaintiff as aforesaid, while he, the plaintiff, was crossing the railroad tracks of the defendants Chicago Great Western Railroad Company and Walker D. Hines, Director General of Railroads for the United States of America, and while plaintiff was in the exercise of ordinary care for his own safety."

The petition then states, in substance, that by reason of the negligent acts stated plaintiff suffered the loss of his right leg, his general health has been greatly impaired, his nervous system severely shocked, and his earning capacity greatly impaired, to his damage in the sum of $50,000, for which he asks judgment.

The defendants Haynes, Scott, and Hines answered jointly, admitting the capacity in which they were sued, and the fact that plaintiff was injured in some manner unknown to them and without negligence on their part, and pleading that the injury was caused by the negligence of plaintiff by placing himself in a position of peril near, under, and between cars on the railway track in the yard of the railroad company, and carelessly and negligently remaining in said position of danger, where he could not be seen or discovered by the defendants while in the exercise of ordinary care, and carelessly and negligently failing to look or listen for engines or cars which might be coupled onto the string of cars mentioned, when plaintiff knew, or in the exercise of ordinary care would have known, that engines and cars were likely to be run against the said string of cars, all of which contributed directly to his injury. This plea was met by general denial.

The plaintiff testified, in substance, that he was employed as poultry caretaker of the Norris Poultry & Egg Company; his duty being to care for poultry in transit. He had then been employed by the company in that capacity for about a year. He had made several previous trips to New York in that capacity. A representative of the company procured the transportation contract which he held, from the hospital after his injury. On that day he had finished loading a car of poultry for New York at the company's plant at 214 North Second street, St. Joseph. After the loading was finished he put his trunk and suit case in the car and went to supper. This was at about 10 o'clock p. m. He then went to the Great Western yard office, and from there to his car, which was shown him by a man from the office. They found the car near the west side of the yard, there being only one track west of it which the testimony shows was track No. 10; the track where he says he found the car being numbered 9. The next track east was numbered 8, and so on past in decreasing numerical order to the track west of the main track, which was numbered 1. When he found the car he went into it and stayed until train No. 60 from Kansas City, upon which it was to be taken, came in and passed north on the main track. During this time he sat in the east door of his car on his trunk. Number 60 was due to arrive at about 11 o'clock. Others testified that its time was 25 to 35 minutes later. That night it did not arrive until 12 o'clock or later. He could see the lights of the train as it came in and pulled north on the main track, and got down and locked his car door. A car stood opposite him on track No. 8 and he went down beside it until he found an opening between it and the next car, which he started to walk through with the intention of crossing the yard to the caboose, when the car north of him was set in motion, struck him on the back of the left shoulder, throwing him to the ground face downward, between the track, his head to the south and his right leg upon the west rail. While he was in this position the moving car passed over him, crushing his right leg so that it was amputated four inches above the knee and fastening his clothing between the flange of the wheel and the rail and moving south far...