Dunn v. Missouri Pac. Ry. Co.

Decision Date06 November 1916
Docket NumberNo. 12185.,12185.
Citation190 S.W. 966
PartiesDUNN v. MISSOURI PAC. RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.

"Not to be officially published."

Action by Napoleon B. Dunn against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. D. Corum, of St. Louis, for appellant. James H. Lay and A. T. Dunn, both of Jefferson City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury received by being run upon by one of defendant's engines, whereby his foot was so injured that amputation was necessary. He recovered judgment in the trial court.

This is the second appeal of the case. The first is reported in 192 Mo. App. 260, 182 S. W. 109. The first trial involved an issue of contributory negligence pleaded by defendant. In the present appeal that issue is eliminated by an amended petition which bottoms the case on the humanitarian rule alone. Contributory negligence is conceded. The facts are detailed in the former opinion. Plaintiff was a carpenter and had only been in defendant's employ perhaps an hour, when he was put to work riveting a stovepipe at a place near defendant's south tracks in the yards at Jefferson City. He needed a hard substance upon which to drive and clinch the rivets, and saw a piece of gaspipe near some rubbish 32 feet west and south of the south rail of the south switch track. A path ran east and west along this track and about 4 feet south of it. Plaintiff walked along this path to the pipe, picked it up, and as he was rising from a stooped position, and at the same time in the act of turning, he was struck on the left side of his head by the end of the pilot beam of a switch engine going west. He had seen the engine on another track as he started after the gaspipe, but did not know it was to be switched, and did not observe it coming towards him on the switch track. We need not dwell upon this phase of the case, since his contributory negligence is conceded, and the question is: Is there sufficient evidence to justify the court in submitting to the jury whether defendant's servants on the engine saw him in a position of imminent peril in time to have stopped, or to have given him warning?

It appears to us that evidence in that direction is abundant. We so concluded on the first appeal. At the second trial the evidence was practically the same, save two additional witnesses for plaintiff. The engine was running at a speed of from 12 to 15 miles an hour, and as it moved west along the switch track one of defendant's servants who opened switches was standing on the footboard in front of the engine, and plaintiff was plainly in his view. He made no outcry to plaintiff, nor did those on the engine ring the bell, sound the whistle, or make any effort to stop, or slacken speed.

The only other question is: Was his position such as to advise those on the engine, as reasonable men, that he was in danger of being struck by the engine? The man on the front of the engine was facing west in the direction it was going, and must have seen that plaintiff had his back to the engine and that he was stooping to pick up something from the ground. He was thus standing on the front footboard of the engine for the very purpose of looking out for danger. He knew that no warning was being given to plaintiff, and the fact that plaintiff was struck as he raised from his stooping position shows that he was perilously near the track. We are dealing with the case, as is our duty, from the standpoint of the evidence in plaintiff's behalf and reasonable inferences to be drawn therefrom. This has been so well amplified in the former opinion that we refer to it for a complete answer to defendant's objections as embodied in his demurrer to the evidence.

Plaintiff's first instruction is objected to on two grounds; one that it declares that he was entitled to notice of the movement of engines and trains. This, of course, must be considered in connection with the evidence. It manifestly did not mean that plaintiff was entitled to notice of the movement of engines which were not in a position to harm him. Conceding it stated an abstract proposition of law, it would, we think, be trifling with justice...

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7 cases
  • Allen v. St. Louis-San Francisco Ry. Co.
    • United States
    • Missouri Supreme Court
    • October 22, 1932
    ...736; Spry v. Railroad Co., 50 F.2d 598; Fenstermacher v. Railroad Co., 309 Mo. 475, 274 S.W. 719; Boles v. Hines, 226 S.W. 274; Dunn v. Railroad Co., 190 S.W. 966; Vollmers v. Railroad Co., 119 N.E. 1084, 167 N.Y.S. 426; Tepper v. Railroad Co., 144 N.E. 668; Heed v. Industrial Commission, 1......
  • Kepner v. Cleveland, C., C. & St. L. Ry. Co.
    • United States
    • Missouri Supreme Court
    • March 27, 1929
    ...used in a round house where engines employed in interstate commerce were sheltered, was not employed in interstate commerce. [Dunn v. Mo. Pac. Ry. Co., 190 S.W. 966.] employee of an interstate road when injured in the discharge of his duties does not come within the purview of the act, unle......
  • Ballew Lumber & Hardware Company v. Missouri Pacific Railway Company
    • United States
    • Missouri Supreme Court
    • June 23, 1921
    ... ... the City of St. Louis was and is without jurisdiction of the ... subject of the action. Smith v. Mo. Pac. Railroad ... Co., 266 F. 653; State ex rel. v. Davis, 190 ... S.W. 966; State ex rel. v. Williams, 221 Mo. 258; ... Miller v. Assurance Co., 196 ... ...
  • Delong v. Me. Cent. R. Co.
    • United States
    • Maine Supreme Court
    • May 24, 1939
    ...shop; Killes v. Great Northern Ry, 1916, 93 Wash. 416, 161 P. 69, building scaffold for painting freight shed; Dunn v. Missouri Pac. Ry. Co., 1916, Mo.App, 190 S.W. 966, riveting stovepipe for stove to be used in roundhouse; Castonguay v. Grand Trunk R. Co., 1917, 91 Vt. 371, 100 A. 908, re......
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