Dixon v. The Chicago & Alton Railroad Company
| Decision Date | 09 May 1892 |
| Citation | 19 S.W. 412,109 Mo. 413 |
| Parties | Dixon, Appellant, v. The Chicago & Alton Railroad Company |
| Court | Missouri Supreme Court |
Rehearing Denied 109 Mo. 413 at 429.
Appeal from LaFayette Circuit Court. -- Hon. Richard Field, Judge.
Action by Katie Dixon, widow, for damages for the death of Charles Dixon. Defendant had judgment under an instruction of the court. Plaintiff appeals.
The following statement was made by Barclay, J.:
Plaintiff has appealed from a judgment for defendant in an action for the negligent killing of her husband. No point arises on the pleadings.
These are the main facts:
Defendant operated a quarry and a rock crusher in Jackson county Missouri, for preparing rock to ballast its road. The quarry lay a short distance south, and extended two or three hundred feet alongside of defendant's line. From different parts of the quarry narrow tracks ran, converging at a turntable seven or eight feet in diameter, the north edge of which was nine feet south of defendant's main track. The rock crusher stood forty or fifty feet north of the track. From the turntable, a small track, called by witnesses a "strap track," crossed the main line at a right angle, and ran up an inclined plane to the crushing machine thirty or forty feet from the ground. Small cars carried the rock to the crusher. They were first drawn along the quarry tracks by a mule to the turntable, and shifted by it into position to strike the strap track. Then a wire cable (fastened at one end to a drum in the crushing machinery) was made fast to one car at a time, which was pulled across the railroad track, up the inclined plane, to the crusher, by means of the steam power used to operate that machine. The rock was unloaded, and the empty car let down to the turntable again by the same wire cable. The latter had a ring or clevis at the end, by which it was attached (as occasion required) to a large iron hook on each car.
A number of hands were engaged in operating this quarry under the superintendence of a foreman who had power to employ and discharge subordinates without consulting anyone, but had no control whatever over trains or the trainmen.
Plaintiff's husband had been at work at the quarry a long time. About a month before his death he had been assigned the duty of attaching the cable to the little cars between the turntable and the crusher, and detaching it again when the cars returned, as has been described. He was also required to assist in turning the table to get the cars in proper position.
Defendant's line approaches the crusher from the east, for some two thousand feet, on an ascending grade of about forty-eight feet to the mile. A short distance (variously stated at from one hundred to four hundred feet) east of the crusher a "forty-minute" curve begins, and extends thence eastward about nineteen hundred feet, bearing towards the south.
While plaintiff's husband had been there at work, about a dozen trains passed daily, including two regular passenger trains each morning, one about eight o'clock and the other about thirty minutes later.
A rule of the company required a signal by sounding the whistle to be given at all obscure curves. An obscure curve is one in which a train at one end cannot be seen from the other end of the curve. It is conceded that the curve in question was an obscure one, and that it was usual for locomotive engines to whistle before reaching the quarry.
On the morning of December 20, 1886, about eight o'clock, one of defendant's passenger trains from the east, within two or three minutes of its regular time, running at the rate of twenty-five or twenty-eight miles an hour, approached the crusher. Plaintiff's evidence strongly tends to prove that no whistle was sounded from it. When the train reached the "strap track" crossing, it struck and killed Dixon, who was working there. Both wheels of the engine passed over the cable at that place.
There was proof of plaintiff's relationship to the deceased, and of all other formal matters, but the trial court declared the law to be that, on the facts above outlined, plaintiff could not recover, "because the said engineer and Dixon were fellow-servants."
Accordingly, the jury returned a verdict for defendant. After saving exceptions, and taking the usual steps for a review, plaintiff appealed.
All other necessary facts are stated in the opinion of the court.
Reversed and remanded.
Graves & Aull for appellant.
(1) The court after all the evidence gave a peremptory instruction to the jury to render a verdict for the defendant. First. This instruction was granted by the court on the ground that said Dixon was a fellow-servant of the trainmen, and, therefore, the company could not be held liable. The same point will, without doubt, be urged in this court. For the complete refutation of such an argument, the appellant cites the following authorities, to-wit: Sobieski v. Railroad, 42 N.W. 863; Hough v. Railroad, 10 Otto (100 U.S.) 222; Marshall v. Schricker, 63 Mo. 312; Hall v. Railroad, 74 Mo. 298; Proctor v. Railroad, 64 Mo. 112; Railroad v. Ross, 112 U.S. 377. Second. The following authorities show who are fellow-servants, to-wit: Railroad v. Ford, 17 Wall. 553; 1 Q. B. 149; 62 Me. 463; 31 Ind. 174; 23 Cent. Law Jour. 316, and cases cited; Railroad v. Hoyt, 12 N.E. 225; Mill Co. v. Johnson, 114 Ill. 57; Railroad v. Hawk, 12 N.E. 255; Waldhier v. Railroad, 32 F. 278, and note; Slater v. Chapman, 35 N.W. 160, and note; Railroad v. Herbert, 116 U.S. 648; O'Hare v. Railroad, 9 S.W. 23; Murray v. Railroad, 12 S.W. 253; Sullivan v. Railroad, 97 Mo. 113; Ridings v. Railroad, 33 Mo. 527; Railroad v. Sullivan, 43 N.W. 416, and cases cited. (2) As to the responsibility of the defendant for the failure of Hill to discharge his duty in sounding the whistle whereby Dixon came to his death, are the following cases: Gormley v. Iron Works, 61 Mo. 492; Whalen v. Church, 62 Mo. 326; Cook v. Railroad, 63 Mo. 397; Stephens v. Railroad, 86 Mo. 221; Crane v. Railroad, 87 Mo. 588; Stoddard v. Railroad, 65 Mo. 514; Bromley v. Railroad, 12 Mo.App. 594; Railroad v. O'Brien, 21 P. 32. (3) The evidence showed that the defendant had established a whistling post for the purpose of warning the men engaged at the quarry that trains were approaching, and that the engineers in charge had always sounded the whistle in approaching this point, excepting on this occasion. The evidence shows that Dixon must have relied upon the sounding of the whistle to notify him of the approach of the train. The railroad company, therefore, owed this duty to Dixon, and no negligence of a fellow-servant would exempt the defendant from liability. Hulchon v. Railroad, 58 Wis. 319, and cases cited.
James G. Trimble and George Robertson for respondent.
(1) The fact that the deceased was consociated with those in charge of the train brings this case within the rule announced by this court in Murray v. Railroad, 98 Mo. 573. (2) The deceased was a fellow-servant with the engineer and the defendant is not liable. "All who are directly engaged in accomplishing the ultimate purpose in view, that is, the running of the road, must be regarded as engaged in the same general business within the meaning of the rule." Hard v. Railroad, 32 Vt. 473; Wright v Railroad, 25 N.Y. 562; 7 American & English Encyclopedia of Law, p. 384; Lanning v. Railroad, 49 N.Y. 521. The defendant having a competent engineer in charge of the train that killed plaintiff's husband, its duty was fulfilled. The following have been held fellow-servants: Engineer and shoveler on gravel train, Railroad v. Tindall, 13 Ind. 366; engineer and section hand, Railroad v. Riddle, 62 Tex. 267; engineer and roadmaster, Walker v. Railroad, 128 Mass. 8; engineer and laborers on gravel train, Ryan v. Railroad, 23 Pa. St. 384; engineer and telegraph operator, Slater v. Jewett, 85 N.Y. 61; engineer and switch-tender, Farwell v. Railroad, 4 Metc. 49; Slatterly v. Morgan, 35 La. Ann. 1166; engineer and track repairer, Railroad v. Colhorn, 73 Ind. 261; engineer and station agent, Brown v. Railroad, 31 Minn. 553; engineer and brakeman working ground switch, Randall v. Railroad, 15 Am. & Eng. R. R. Cases, 243; engineer and employe in tunnel, Capper v. Railroad, 21 Am. & Eng. R. R. Cases, 525. The following cases of this state are in harmony with the foregoing citations and cases: McDermott v. Railroad, 30 Mo. 115; Rohback v. Railroad, 43 Mo. 192; Harper v. Railroad, 47 Mo. 576; McGowan v. Railroad, 61 Mo. 532; Brothers v. Cartter, 52 Mo. 375; Evans v. Railroad, 62 Mo. 52; Conner v. Railroad, 59 Mo. 299; Blessing v. Railroad, 77 Mo. 410; Moon v. Railroad, 85 Mo. 588; Murray v. Railroad, 98 Mo. 573; Higgins v. Railroad, 104 Mo. 413. (3) It was the duty of the deceased to keep the cable off the track. He was negligent in leaving the cable on the track, and in running before a rapidly moving train to remove it. This being disclosed by the plaintiff's own evidence, it was the duty of the court to direct a verdict for the defendant. Yancey v. Railroad, 93 Mo. 433; Fletcher v. Railroad, 64 Mo. 484; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Taylor v. Railroad, 86 Mo. 457; Cagney v. Railroad, 68 Mo. 416. When the evidence fails to connect the negligence with the accident, the court should direct a verdict for the defendant. Holman v. Railroad, 62 Mo. 562; Thompson on Trials, sec. 1678. When it appears from the plaintiff's case alone that he is guilty of contributory negligence, the court should direct a nonsuit. Prideaux v. Mineral Point, 43 Wis. 513. "If it appears without any conflict of evidence from the plaintiff's own case, or from the cross-examination of his witnesses, that he is guilty of negligence proximately contributing to produce the injury, it...
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