Dyerson v. Union P. R. Co.

• Decision Date: 10 November 1906
• Citation: 87 P. 680,74 Kan. 528
• Parties: DYERSON v. UNION PAC. R. CO.
• Court: Kansas Supreme Court

87 P. 680

74 Kan. 528

DYERSON v. UNION PAC. R. CO.

Supreme Court of Kansas

November 10, 1906

Syllabus

The rule that a railroad employé who is engaged in the discharge of a duty, the performance of which requires him to be on or near the track, need not keep a strict watch for approaching trains in order to be deemed to be exercising reasonable care for his own protection, does not apply to the case of an employé who is injured while attempting to cross a track merely for the purpose of getting from one point to another; the circumstances not requiring the crossing to be made at a particular time or place.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 739, 751.]

The fact that such employé works close to a track and has frequent occasion to pass back and forth over it does not relieve him from the requirement that, in order that he may be deemed to be in the exercise of ordinary diligence, he must look in both directions for an approaching train before undertaking to cross it.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 739, 751.]

The fact that such an employé knows that it had previously been the rule and practice of the company to run trains along said track only in one direction except under unusual circumstances, does not relieve him from such requirement, although a change has been made in such rule and practice without notice to him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 739, 751.]

A plaintiff who has received an injury occasioned by the negligence of the defendant, but who could have avoided it by the exercise of ordinary care on his own part, cannot recover damages therefor, although the defendant ought to have discovered (but did not, in fact, discover) his peril in time to have prevented the accident, where the plaintiff’s negligence continued up to the very moment he was hurt, and where the exercise of reasonable diligence before that time would have warned him of his danger and enabled him to escape by his own effort.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 801-804.]

Error from Court of Common Pleas, Wyandotte County; Wm. G. Holt, Trial Judge.

Action by Charles W. Dyerson against the Union Pacific Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

C. F. & S.D. Hutchings and E. L. Fischer, for plaintiff in error.

N.H. Loomis, R. W. Blair, and H. A. Scandrett, for defendant in error.

OPINION

MASON, J.

Charles W. Dyerson was run into by an engine and tender of the Union Pacific Railroad Company and severely injured. He sued the company for damages, alleging that his injury was occasioned by the defendant’s negligence. At the trial the court rendered judgment against him upon his petition and his preliminary statement to the jury. He prosecutes error.

The material facts disclosed by the plaintiff’s pleading and statement may be thus summarized: He had for some time been employed by the company in the Kansas City yards. At the time of his injury he was known as a "car repairer" and one of his duties was to supply cars with ice. Ice for this use was kept in a box four feet high, four feet wide, and eight feet long, placed parallel with a double track, four or five feet north of the northermost rail. Between the box and the track were three steps, each eight inches high; the edge of the lowest being about two feet from the rail. For a long time the custom had been to use the north track only for west-moving trains or locomotives, except when the south track, which was used by those going east, was obstructed. This custom was in accordance with a rule, of the existence of which the plaintiff knew by having some time before, while he was a car inspector, seen in a switch shanty a bulletin in which it was incorporated. A short time before the injury complained of the rule and practice in this respect had been reversed, but the plaintiff was not notified of the change, and had no knowledge of it. On the day of the accident, at about 11 o’clock in the morning, he was told to get ready to ice a tourist car which would be in shortly. He went to the east end of the ice box, where there was a rack for the purpose, and crushed a quantity of ice with which he filled a bucket, placing it in or near the box. He then walked to a point a little west of the box and waited for the car to arrive. While standing there, his foreman beckoned him from a place south of the tracks and east of where he stood, and pointed to the car which was to be iced. He walked between the ice box and the track to get his bucket of ice, reached it, took hold of it and started to carry it to the car, and while on the lowest step and about to proceed across the track he was struck by the tender of a locomotive which was backing east on the north track at the rate of 15 or 20 miles an hour without giving a signal of its approach and without keeping a lookout along the track. The track was straight for a quarter of a mile west. It was a clear day, and there was nothing to have prevented the plaintiff from seeing the engine and tender if he had looked. It is, therefore, manifest that the plaintiff’s omission to exercise due caution in his own behalf was fatal to his recovery unless there was something in the peculiar circumstances of the case to take it out of the general rule, which is thus stated in 23 A. & E. Encycl. of L. (2d Ed.) 765: "Any one who goes upon or near a railroad track is bound, at his peril, to make diligent use of his senses of sight and hearing in order to detect the approach of trains; and if, in disregard to this duty to his own safety, he steps upon the track without looking or listening, *** he is guilty of such negligence as to bar an action for the injury." One of the exceptions of the rule is stated by the same authority in these terms (Id., p. 768): "Nor does the principle apply to employés whose duties require their presence upon the track, the performance of which duties necessarily precludes their paying the strictest attention to the approach of trains."

It is argued that the plaintiff in error falls within this exception. If he had been injured while standing upon the steps and engaged in breaking ice, this might be true, for the performance of that duty might have rendered it impracticable for him to keep a strict watch for passing trains, and if, while so engaged, any part of his body could come within the overhang of the cars or locomotives, the place was not a safe one to work in. But such was not the case. Whatever danger he might have been subjected to while filling his bucket with ice had passed. He had moved to a place of entire safety west of the ice box, and was awaiting an order to carry the ice to a car. When the order came, he had no duty for the time being but to get the bucket and carry it across the track to where the car stood. However great a degree of promptness or haste might have been expected of him, it was not essential that he should cross the track at any particular point, nor could his delaying until the engine and tender had passed have been material. He was simply in the position of one having occasion to get from one side of the track to the other. The necessity of his picking up the bucket before crossing did not preclude his glancing up the track to see if it was clear. The mere fact that he had habitually worked near the track and was under the frequent necessity of crossing it did not justify any relaxation of vigilance on his part. The tendency of the authorities seems rather to be to regard such circumstances as calling for the exercise of a higher degree of diligence than is expected of a pedestrian who is not an employé . In Wabash R. R. Co. v. Skiles, 64 Ohio St. 458, 60 N.E. 576, it is said: "It has been laid down as the law that passengers who are required to cross railroad tracks in getting upon or alighting from trains have the right, from the nature of their contract, to expect a safe place for that purpose, and may govern themselves accordingly; but such immunity has never been conceded to travelers upon a railroad crossing having equal rights there with the railroad company and still less to employés in the yards or depots of the company. The latter have no invitation or implied contract, as passengers do have, to perform their duties in a safe place. The very nature of employment about the tracks of a railroad involves notice of the danger of it, and nobody knows better than an employé that other employés are liable to be careless in the observance of rules, and lax in the performance of duty. Therefore he cannot be permitted to shut his eyes to obvious dangers, and to act with ‘full reliance’ that rules will be observed, and a safe passage kept for him, whenever his duties call upon him to cross the tracks. He cannot be excused from the rule that ordinary prudence requires that a person in the full enjoyment of the faculties of seeing and hearing should use them when about to pass over a railroad track, and that the omission to do so is contributory negligence when it immediately results in an injury which might have been avoided if the injured person had looked or listened." Among other cases bearing more or less directly upon this proposition may be cited Grand Trunk Ry. Co. v. Baird, 94 F. 946, 36 C. C. A. 574; Loring v. Kansas City, Ft. S. & M. R. Co., 128 Mo. 349, 31 S.W. 6; Elliot v. Chicago, M. & St. P. Ry. Co., 5 Dak. 523, 41 N.W. 758, 3 L. R. A. 363; Elliot v. Chicago, Milwaukee & St. Paul Railway Co., 150 U.S. 245, 14 S.Ct. 85, 37 L.Ed. 1068; Abbot v. McCadden, 81 Wis. 563, 51 N.W. 1079, 29 Am. St. Rep. 910; Carlson v. Cincinnati, S. & M. R. Co., 120 Mich. 481, 79 N.W. 688; St....