Debolt v. The Kansas City, fort Scott & Memphis Railway Company

• Citation: 27 S.W. 575,123 Mo. 496
• Parties: DeBolt, Appellant, v. The Kansas City, Fort Scott & Memphis Railway Company
• Decision Date: 25 June 1894
• Court: Missouri Supreme Court

27 S.W. 575

123 Mo. 496

DeBolt, Appellant, v. The Kansas City, Fort Scott & Memphis Railway Company

Supreme Court of Missouri, First Division

June 25, 1894

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

J. T James for appellant.

(1) Usually the question of contributory negligence is one of fact and is left to the jury under suitable instructions. Beach on Contributory Negligence [2 Ed.], sec. 448, page 566; Smith v. Railroad, 61 Mo. 588; Scoville v Railroad, 81 Mo. 434; Reilly v. Railroad, 94 Mo. 600. (2) When the character of the facts are such that different conclusions may be drawn from them, it is a question for the jury. Beach on Contributory Negligence [2 Ed.], sec. 450 and 451; Dunn v. Railroad, 21 Mo.App 188; Norton v. Ittiner, 56 Mo. 351; Scoville v. Railroad, 81 Mo. 434; Roddy v. Railroad, 104 Mo. 234; Petty v. Railroad, 88 Mo. 306; Lynch v. Railroad, 112 Mo. 420. (3) The trial court will not declare as a matter of law one guilty of contributory negligence where the evidence does not make out a clear case of such negligence. Bluedorn v. Railroad, 108 Mo. 439. (4) Contributory negligence will be so declared as a matter of law only where no other inference can fairly and reasonably be drawn from the facts in evidence. Wilkins v. Railroad, 101 Mo. 93. (5) A railroad company owes a duty of active vigilance to a person lawfully engaged in unloading a car of freight upon a side track where it has been placed by the company or its servants or employees to be unloaded and has no right to back or run a train upon the same track without giving the person so engaged at labor special notice and warning. This is a duty imposed by law upon the railroad company and any person so engaged at labor has a right to rely upon this duty and await that special notice and warning before ceasing to labor and quitting the car to permit it to be removed. Such person may rightly assume that the company will not molest him, nor render his position hazardous without such special notice or warning. Gessly v. Railroad, 32 Mo.App. 413; 1 Thompson on Negligence, p. 460. (6) Negligence is not imputable to a person for failing to look out for danger when under the surrounding circumstances he had no reason to suspect any. Lanyan v. Railroad, 72 Mo. 392; O'Connor v. Railroad, 94 Mo. 150. (7) It is gross negligence for a railroad company to make a flying switch over a public highway which is in constant use without the car being attended by and under the control of a brakeman. It is negligence per se to make a flying switch and to kick cars over a street crossing. O'Connor v. Railroad, 94 Mo. 150. (8) Defendant is not to be allowed, first, to induce deceased to be careless, and then to plead that carelessness as a defense to an action brought for the injury that has been the result. Beach on Contributory Negligence [2 Ed.], p. 93, sec. 67; McGee v. Railroad, 92 Mo. 208. (9) Unless the acts of the deceased were the direct and proximate cause of the injury, the defendant will be liable. Kennayde v. Railroad, 45 Mo. 255.

Wallace Pratt, C. W. Blair and I. P. Dana for respondent.

(1) The appeal should be dismissed because no such affidavit for appeal was filed as the law requires. Bridge Co. v. Railroad, 72 Mo. 664; Lengle v. Smith, 48 Mo. 276; Brown v. Railroad, 83 Mo. 478; Clelland v. Shaw, 51 Mo. 440; Greenleaf on Evidence [15 Ed.], secs. 6 and 489. (2) The trial court did not err in sustaining the demurrer to evidence, because: First. There was a failure to prove the essential allegations of the petition. Current v. Railroad, 86 Mo. 62; Jackson v. Hardin, 83 Mo. 175; Harty v. Railroad, 95 Mo. 368; R. S. 1889, sec. 2238; Nichols v. Larkin, 79 Mo. 264; Roddy v. Railroad, 104 Mo. 234; 3 Wood's Railway Law, sec. 373. Second. The evidence did not show that any failure on the part of the defendant in any duty it owed deceased was the cause of his death. Gurley v. Railroad, 104 Mo. 223; Patterson's Railway Accident Law, p. 7; McDermott v. Railroad, 87 Mo. 285; Murray v. Railroad, 101 Mo. 236; Hudson v. Railroad, 101 Mo. 13; 2 Wood's Railway Law, sec. 320. Third. The evidence showed that deceased's injuries were due to his own carelessness. Murray v. Railroad, 101 Mo. 236; Kellney v. Railroad, 101 Mo. 67; Schlereth v. Railroad, 96 Mo. 509; Railroad v. Lindley, 42 Kan. 714; Henry v. Railroad, 76 Mo. 288.

Gantt, J. Black, C. J., Brace, Burgess, Macfarlane and Sherwood, JJ., concur. Barclay, J., dissents, for the reasons stated in his opinion in division one, which he now refiles as expressing his views.

OPINION

In Banc

Gantt J.

This action was brought in the circuit court of Jasper county, by the plaintiff, as the widow of Frank DeBolt, to recover of the defendant statutory damages for negligently causing the death of her husband.

The action was commenced within six months after her husband's death, which occurred June 8, 1891. The petition states the following facts as the basis of the recovery sought:

"That on the eighth day of June, 1891, and within six (6) months before the bringing of this suit, her said husband, Franklin A. DeBolt, was engaged in directing the unloading of a flat car loaded with stone, which car was standing on the west switch of defendant's railroad tracks at Webb City, Jasper county Missouri, at the place where defendant's servants and employees had placed it to be unloaded, and on the track where cars to be unloaded are usually placed by defendant at Webb City; and said Franklin A. DeBolt had several men and teams which he was then and there directing in the unloading of said car of stone, and he was busy, engaged in said work, and while he was so engaged, defendant's servants and employees, in making up a train of freight cars, came upon the switch where the car on which said Franklin A. DeBolt was at work as aforesaid, was standing, coupled with other freight cars on said switch while so standing, and all of which cars were not part of a train, but were standing on the switch aforesaid used for unloading cars, and coupled the engine to the car nearest the main track; and there were other cars between the stone car and the engine when the engine was coupled to said cars so standing on the switch, coupled together, and without giving said DeBolt and his men any notice of their intentions to move the stone car, or allowing time to alight from the same, the engine, when so coupled to the cars, under the direction of the conductor and managed and controlled by the engineer, both servants of defendant, pulled the cars from the switch out on the main track, including the flat car loaded with stone on which said DeBolt was at work, and thereby carried said DeBolt and the men at work on the car under his direction, out on said flat car; and when the cars that were detached from those cars so taken from the switch had been placed on the main track, then a 'flying' switch was made with the stone car and the others yet coupled with it, by which this stone car upon which said DeBolt and the men were all remaining, as they had been taken out from the switches before stated, was with the other cars coupled to it, by the 'flying' switch 'shunted' or 'kicked' in on the switch from the main track with such a force as to drive the cars against other cars that were standing on the switch, and with such force that in striking the standing cars the momentum of the moving cars was so great that the striking, the force knocked said DeBolt from the stone car, under the wheels of the moving stone car, and the force of the moving car was so great that when the wheels had run upon and crushed the legs and person of said Debolt, the brakebeam struck his body and pushed him along on the track of said railroad, over a large stone, for the distance of half a car length, or about sixteen feet, and and so badly injured him that he died from the effects thereof."

The answer was a general denial, and a plea of contributory negligence.

After hearing the evidence, the circuit court sustained a demurrer thereto. The plaintiff took a nonsuit with leave to move to set the same aside, and in due time filed her motion to set aside, which motion was overruled, and she appeals therefrom.

Objection is made in this court to the sufficiency of the affidavit for appeal. While open to criticism, we think it is substantially sufficient; no point was made against it in the trial court, and the objection, here, would not justify a dismissal of the appeal.

The substantial question for our determination is the propriety of sustaining the demurrer to the evidence.

The following undisputed facts appear from the evidence: A flat car loaded with stone belonging to William Blackledge & Son had been placed upon a side track of the defendant, at Webb City, for the purpose of being unloaded by the owner of said stone. This car was coupled at the north end to another car loaded with coal, and the coal car was coupled on the north with a box car, to which still another car was coupled. Blackledge & Son were contractors, engaged in building, and plaintiff's husband was in their employment. On the morning plaintiff's husband was killed, other laborers were engaged in unloading the stone from the car, and loading it on wagons, and hauling it away. Several loads had been removed from the north end of the car, next to the coal car leaving that end clear, when Mr. DeBolt, plaintiff's husband, arrived at the car, between 9 and 10 o'clock that morning. His business there was to superintend the unloading for Messrs. Blackledge. When he reached the car loaded with stone, there were three laborers upon it, Perry, King and Marshall, and he, also, climbed upon it. When he got upon the car, he began to talk with Marshall about placing a derrick to...