Ducoulombier v. Baldwin

• Decision Date: 28 December 1936
• Docket Number: No. 5644.,5644.
• Citation: 101 S.W.2d 96
• Parties: DUCOULOMBIER v. BALDWIN et al.
• Court: Missouri Court of Appeals

101 S.W.2d 96

DUCOULOMBIER v. BALDWIN et al.

No. 5644.

Springfield Court of Appeals. Missouri.

December 28, 1936.

Rehearing Denied February 4, 1937.

Appeal from Circuit Court, Lawrence County; Emory E. Smith, Judge.

"Not to be published in State Reports."

Action by Gustaff Ducoulombier against L. W. Baldwin and another, trustees of the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

F. M. McDavid and F. W. Barrett, both of Springfield, and McNatt & McPherson, of Aurora, for appellants.

Sizer & Lockmiller, of Monett, and M. Stanley Ginn, of Aurora, for respondent.

ALLEN, Presiding Judge.

This is an appeal from the circuit court of Lawrence county. The plaintiff recovered a judgment of $8,000 against the defendants, and voluntarily remitted $500, bringing the case within the jurisdiction of this court. Defendants filed motion for new trial, which motion was overruled and the case comes to this court on appeal by defendants.

The plaintiff's petition alleges that the defendants own and operate large and extensive switch yards, station grounds, and trackage, and switch yards for the breaking up of trains, switching cars, and making up of in-bound and out-bound trains coming in and going out of their yards in Kansas City. That the plaintiff, at one time, prior to July 24, 1934, had been employed by defendants as a car inspector. That on that date he went from his home to the Kansas City Yards of defendants to see if he could obtain employment or whether or not there was any demand for his services, by reason of lay-offs of other men.

The petition further stated that plaintiff raised chickens and he, together with others, had been accustomed for a great many years to going to defendants' railroad yards and picking up wheat, which would leak from the railroad cars in defendants' switch yards, and that it was a custom of long standing for defendants' employees, ex-employees, and other people to go to defendants' switch yards to pick up wheat and that this fact was known to the agents, servants, and employees of defendants. That on this morning plaintiff took with him a sack and whiskbroom for the purpose of picking up wheat and that he was picking up wheat on track No. 12. That he found a small pile of wheat at the end of one of the cars and stooped over with his broom, and was in the act of sweeping up this wheat, together with the dirt and cinders, when one of defendants' engines bumped into the string of cars, causing the car near which plaintiff was working to strike him, throwing him under the wheels and seriously injuring him. That one of the defendants' employees saw him, plaintiff, in this position and conversed with the plaintiff and shortly thereafter gave a signal to the engine crew to move the cars. That defendants' employee failed to give the plaintiff any warning signal that the string of cars would be moved.

The petition specifically charges negligence, as follows:

"(a) In negligently and carelessly causing, permitting and allowing said string of cars to be moved, when the defendants knew, or by the exercise of ordinary care on their part could have known of the dangerous and perilous position in which plaintiff was situated, in time, by the exercise of ordinary care, on their part, to have avoided injury to plaintiff."

"(b) In that the defendants, their agents, servants, and employees, knew of plaintiff's perilous position and negligently and carelessly failed to give any warning or signal of their intention to move said cars, when, by the exercise of ordinary care on their part, they could have avoided injury to plaintiff, by giving him sufficient warning of their intentions to move said car, in time to have avoided injury to plaintiff."

The answer was a plea of contributory negligence, and a further plea that the plaintiff, without any right or authority, entered upon the property of the defendants, and was trespassing thereon, at the time of his alleged injury. That he carelessly and negligently placed himself beneath and under certain box cars belonging to the defendants, which he knew would likely be moved by servants of the defendants at any time in their switching operation, and that he placed himself in a position where he could not be seen by the agents and servants of the defendants, who were operating and moving said cars and negligently and carelessly placed himself where he would be struck by said car should the same be moved and when he could have avoided the alleged injury.

The evidence, on behalf of the plaintiff, was to the effect that plaintiff lived near the Missouri Pacific shops and track, in Kansas City; that he had worked for the defendant railroad company since 1911, in different capacities and at three different periods. That he had not worked for defendant company since 1930. That he quit work then because the work was slack and there was a reduction in the force.

That for the past several years before his accident he had seen men coming and going from the railroad yards of the defendant railroad company, gathering up wheat. He had been there every day, picking up wheat and grain and coal. The yardmaster and foreman and other employees of the defendant company were there and had never asked him to leave the yards. On the morning he was injured he went to the west end of the yards near the roundhouse. He lived west of the roundhouse about two blocks and a half. As he was going through the yards, he spoke to one of defendants' employees. His evidence further disclosed that a great number of cars are switched in defendants' yards, to the elevators, and some of the grain spills out of the cars, due to cracks or leaks in the cars, and that it lies there in little piles, and people frequently pick up the grain. On the morning he was injured he had stopped near track 12 to put some wheat in his sack. He scraped the wheat up into a long string and most of it was near the rails. There was a long string of cars on track No. 12 and the cars ran east and west. He was on the east side of the cars, raking up the wheat and facing north. The end of the cars was about 6 or 8 inches from him, and the cars were coupled together. While he was near the end of the cars, sweeping up wheat, the switchman came along and asked him if he was having any luck. That the switchman could see the position he was in and that he, plaintiff, was down on his knees. The switchman walked away west, and in a few seconds the cars moved west and hit him on the shoulder, knocked him over, and he fell with his foot on the track. He further testified that no warning was given him of intention to move the defendants' cars, and that he heard no signal of any kind, and that the switchman was out of sight at the time the cars were moved.

On cross-examination plaintiff testified that the wheat was usually outside of the rail; that he hardly ever found any toward the coupling. That sometimes he would find a strip of wheat 15 feet long, and that most of it would be outside the rails. That from his position he could not see the string of box cars that were on the track, but when they moved they moved toward the west and when the switchman passed him he was facing north, and that while he was in this position he knew these cars were apt to be moved at any time, but he supposed they would call to him to get out.

Upon redirect examination, plaintiff testified that his shoulder was close to the stirrup of the car, and he was leaning over the rail. That his shoulder was 6 or 8 inches from the car east of him, which knocked him over. He, however, does not say that he was in this position when defendants' switchman saw him, but that he was in this position when the cars were moved, and that the sill steps of the car were what struck him. That the sill step was about even with his right shoulder and that the end of the car could not have struck him, but that the sill step was what hit him.

Bennie Weed said that he knew plaintiff was hurt, on track No. 12, and that there were about 35 cars and that the cars were approximately. 50 feet long. This witness further testified that everybody who had chickens went to the railroad yard to get wheat, or did until the accident occurred. That he, himself, when he was not working would gather wheat all day. That July is the peak of the wheat season, and that at this time a great deal of wheat is spilled on the ground. This witness further testified that on the morning plaintiff was injured he was in the yards getting wheat; that he was down early and through getting his wheat when the plaintiff was picking up wheat. As witness went down the train of cars where plaintiff was working, he saw him on the ground, getting wheat in a sack and that when he came back on the other side he again saw the plaintiff. That the tracks at this point run east and west, and the plaintiff was on the south side of the train and was squatted down outside the rail between the cars. Witness further testified that there was a switchman there looking over the train. That he saw him looking at the plaintiff. Witness further said that he kept on going west and had gone but a few steps and it was not many seconds after he saw the switchman looking at the plaintiff that he gave a signal which he thought was to back up. After the switchman gave the signal, the cars jammed together and he went up and carried his wheat away. That after this signal the cars came together, but he did not know that the plaintiff was injured. That the cars only moved about one car length, before they were stopped.

Upon cross-examination he said that he saw just one of the brakeman's hands. The engine was headed towards him. That he could see his right hand, but could not see his left hand. That he knew the signal was meant for a back up. He further testified that he did not warn the plaintiff of any danger, and did not say anything to the man that he saw giving the...