Dunn v. Missouri Pac. Ry. Co.

• Decision Date: 06 December 1915
• Docket Number: No. 11573.,11573.
• Citation: 192 Mo. App. 260,182 S.W. 109
• Parties: DUNN v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

182 S.W. 109

192 Mo. App. 260

DUNN v. MISSOURI PAC. RY. CO.

No. 11573.

Kansas City Court of Appeals. Missouri.

December 6, 1915.

Rehearing Denied January 17, 1916.

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

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

C. D. Corum, of St. Louis, for appellant. James E. Hazell, of Jefferson City, for respondent.

TRIMBLE, J.

A suit to recover damages for personal injuries. Plaintiff, while working near the south side of defendant's south switch track in the railroad yards at Jefferson City, was struck on the head by the end of the pilot beam of an engine being taken to the roundhouse by the engine hostler and his helper. Judgment went for plaintiff, and defendant has appealed.

Plaintiff was 56 years old, and had been employed by two other railroads as a bridge and building carpenter. On the morning of his injury he entered the employ of defendant, and was directed by defendant's foreman to go to work riveting stovepipe at a place some 8 or 10 feet south of defendant's south switch track and within a few feet of where two other employés were at work. Plaintiff was told he would have to fix a place to work. Thereupon he prepared a frame to use in the work and punched holes in several joints of stovepipe. He then found he needéd an iron upon which to clinch or fasten the rivets, and, after looking around, he saw a piece of gas pipe lying about 30 feet west of where he was working and about 2 ½ feet south of the south rail of the switch track. Said piece of gas pipe was lying between said south rail and a pile of ties and rubbish about 4 feet from the track. There was a beaten path alongside of, and some 4 feet south from, the track, and plaintiff, keeping on this path, walked to the gas pipe, stooped and picked it up, and, just as he turned around to face the east, he was struck on the left side of the head and seriously injured by an engine going west on the switch track to the roundhouse. He was not aware of the presence of the engine until the moment it struck him.

The question on this appeal is whether plaintiff is entitled to recover. Defendant says he is not; that its demurrer should have been sustained; and we are asked to reverse the case outright on that account. Of course, before this can be done, it must clearly appear that there is no substantial evidence to support plaintiff's case; that, after giving to plaintiff the benefit of every reasonable inference the evidence will bear, and accepting as true all evidence in his favor, it still is seen that plaintiff, as a matter of law, is not entitled to recover. If, however, under any reasonable view of the evidence, there is any theory upon which plaintiff is entitled to prevail, then the verdict reached by the jury cannot be set aside.

The petition charged that the defendant's servants operating the engine negligently ran it in excess of 8 miles per hour in violation of a city ordinance, and that said servants in charge of said engine negligently ran it against plaintiff without warning of any kind; that plaintiff was in plain view, and by the exercise of ordinary care said servants knew or could have known of the dangerous situation of plaintiff in ample time to have prevented the collision. The answer pleaded contributory negligence.

An ordinance of the city limited the speed to 8 miles per hour. The evidence amply showed that the engine exceeded this speed. The hostler running it said he was going 8 or 10 miles per hour; his helper placed the speed at 10 miles; while another witness said it was going from 12 to 15 miles per hour. However, the speed of the engine is not referred to here as an independent ground of negligence upon which plaintiff can recover, because plaintiff admits that when he started west along the path to get the gas pipe he did not look east to see whether an engine was coming, and he also admits that he did not look east at any time after he started.

One who approaches dangerously near to a railroad track without looking to see whether a train is coming must be held to be guilty of contributory negligence as matter of law. In conceding that plaintiff was thus guilty of contributory negligence, we are not unmindful of the fact that this was a switch track and that plaintiff testified he looked east past the "crossover" (the entrance to the switch track in question, and which was about 100 yards away), and saw no engine coming, but did see one which he supposed was at work down in the yards farther east. But while the track was a switch track, yet it was one that led to the roundhouse, and necessarily engines would pass to and fro over it, and the evidence shows they did so pass. The track was a track in use and was in itself a signal of danger. There was, therefore, as much necessity for looking when plaintiff approached this track as any other. And although plaintiff says he looked east and saw no engine on the switch track, yet his evidence shows that this was before he saw the gas pipe down the track and started for it. He does not state how long it was before he started to walk west that he looked east, nor how near that was to the time he started. He does say that he looked east as he came around the toolhouse looking for something to rivet the stove pipe on; but it was after this that he noticed the gas pipe west of the toolhouse and west of his place of work; and elsewhere in his testimony he says he did not look east at the time he started west for the gas pipe and that he did not look at any time thereafter.

Possibly plaintiff could not be held to be guilty of contributory negligence as a matter of law if, at the time plaintiff started west, the train was so far away that it could not have been seen, or was so far distant that any reasonably prudent man would know he had plenty of time to get the pipe before the train could arrive, traveling at a lawful rate of speed. If the train was that far away, but was going at such an excessive and unlawful speed as to enable it to travel that great distance and strike plaintiff in such an unreasonably and unexpectedly short time, then perhaps it would be solely the speed that caused the injury, and not plaintiff's failure to look. In that case the question whether his failure to look contributed to his injury would be for the jury to determine. But the speed of the train, while shown to be in excess of that prescribed by ordinance, was not so great as to give rise to an inference that the engine was so far away as that, or that it could not have been seen by plaintiff at the time he started west, had he looked. So that it cannot be claimed that plaintiff, even if he had looked, would not have seen the train, or would have reasonably supposed, as an ordinarily prudent man, that he had time to get the pipe. The train, even if going as high as 15 miles per hour, could not have been an exceedingly great distance away when plaintiff started, because plaintiff says he walked to the gas pipe, picked it up, and was struck just as he arose and was turning around to the east. Plaintiff, therefore, could have seen the train when he started west, and if he then and thereafter failed to look he was negligent, and his negligence must be deemed to have contributed to his injury as matter of law. Stotler v. Chicago and Alton Railroad, 204 Mo. 619, 103 S. W. 1; Schmidt v. Missouri Pacific Railway Co., 191 Mo. 215, 90 S. W. 136, 3 L. R. A. (N. S.) 196. Hence we say plaintiff cannot recover upon the ground of negligent speed in the operation of the engine.

But plaintiff's contributory negligence will not defeat his recovery if, after he is seen to be in danger, the persons in charge of the train had time, either to warn him, so that he could have escaped, or to prevent the collision themselves, by slowing up or stopping the engine, and failed to do so. In such case defendant's servants would be guilty of a violation of the humanitarian rule, against which plaintiff's contributory negligence constitutes no defense. On this feature of the case we must bear in mind the allegations of the petition. It says the plaintiff was in plain view of the persons on the engine; that they knew, or by ordinary care could have known, that he was in danger in time to have avoided the injury, but that they negligently ran against him without warning of any kind.

The evidence undoubtedly justified the jury in finding that plaintiff was in plain view of at least...