Evans v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 14 September 1939
• Docket Number: 35790
• Citation: 131 S.W.2d 604,345 Mo. 147
• Parties: William Evans, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

131 S.W.2d 604

345 Mo. 147

William Evans, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, a Corporation, Appellant

No. 35790

Supreme Court of Missouri

September 14, 1939

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge; Opinion filed at May Term, 1939, July 7, 1939; motion for rehearing filed; motion overruled at September Term September 14, 1939.

Affirmed.

Cyrus Crane, Geo. J. Mersereau, John N. Monteith, James F Walsh and Dean Wood for appellant.

(1) The trial court erred in refusing to give the defendant's demurrer offered at the close of all the evidence, for the reasons: that this case was tried under the Federal Employers' Liability Act and this defendant violated no duty to the plaintiff, a track worker in its employ, to warn the plaintiff of the approach of defendant's trains; that the accident was not its fault; and that plaintiff, in walking along beside that main line track without keeping any lookout for the approach of trains from behind, assumed the risk of injury therefrom. (a) Plaintiff tried his case on the theory that it was the practice of defendant to warn plaintiff and the other track workers when using the path along beside the north main line track. This path was not sufficiently used even to impose a duty of lookout for members of the public using it, let alone the plaintiff. English v. Wabash Ry. Co., 108 S.W.2d 57; L. & N. Railroad Co. v. Foust, 118 S.W.2d 777; Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 596, 123 S.W. 819; Witham v. Delano, 184 Mo.App. 682, 171 S.W. 991. The governing rule under the Federal Employers' Liability Act is that track workers such as the plaintiff must look out for themselves on or near the tracks unless there is a custom and practice established and known to railroad and men to warn the track workers. Martin v. Wabash Ry. Co., 325 Mo. 1136, 30 S.W.2d 749; Jones v. St. L.-S. F. Ry. Co., 325 Mo. 1159, 30 S.W.2d 482; Norfolk & Western Railroad Co. v. Gesswine, 144 F. 60. Even if there had been such public user of that path as would have imposed a duty to warn members of the public thereon, the defendant would still have owed the plaintiff no duty to warn in the absence of such custom and practice to do so. Karr v. C., R. I. & P. Ry. Co., 108 S.W.2d 49; Carfelo v. Delaware, L. & W. Ry. Co., 54 F.2d 477. It is this theory on which the case was tried, therefore, which controls on this appeal. Scott v. Mo. Pac. Ry. Co., 333 Mo. 387, 62 S.W.2d 839. (b) There was no custom or practice of defendant in evidence to warn plaintiff, whose employment was upon the tracks, when he used that little path along beside the tracks. The proof of such a custom and practice must show it was uniform, certain and notorious, which evidence is not to be found in this record. Pankey v. A., T. & S. F. Ry. Co., 180 Mo.App. 200, 168 S.W. 279; Chicago, M. & St. P. Railroad Co. v. Lindeman, 143 F. 950. The fact the trains in passing generally blew a whistle for the public road crossings at Morris establishes no duty to the plaintiff and the other track workers in the vicinity and they were not justified in relying on such signals. Brock v. M. & O. Ry. Co., 330 Mo. 928, 51 S.W.2d 103; Cincinnati, N. O. & T. P. Ry. Co. v. Harrod's Admr., 115 S.W. 701; Karr v. C., R. I. & P. Ry. Co., 108 S.W.2d 48; Norfolk & Western Ry. Co. v. Gesswine, 144 F. 60; Land v. St. L. & S. F. Ry. Co., 148 P. 615; C. & O. Railroad Co. v. Mihas, 280 U.S. 106, 50 S.Ct. 43. (c) Plaintiff, in fact, did receive reasonably sufficient warning from the ringing of the bell. The rule applies that where all the positive evidence on an issue is one way, then that evidence governs as a matter of law. Little v. Manufacturers' Ry. Co., 123 S.W.2d 222; Martin v. Wabash Ry. Co., 325 Mo. 1117, 30 S.W.2d 739. The constant ringing of the bell gave adequate warning to the plaintiff, who lacked but a little of being in the clear anyway and additional warning was not, in law, required. Cincinnati, N. O. & T. P. Ry. Co. v. Harrod's Admr., 115 S.W. 701; Carter v. St. L. & S. F. Ry., 249 S.W. 126. (d) Plaintiff did not really rely on those crossing whistles being blown for that path and for his benefit when using it. His injuries came from failure to look out behind him. A stop at the last moment would have saved him, had he thought about where he was. Witham v. Delano, 184 Mo.App. 684, 171 S.W. 992; Dyerson v. Union Pac. Ry. Co., 87 P. 681; Cook v. Director for Santa Fe Ry. Co., 235 S.W. 156; Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 599, 123 S.W. 820; Jacobson v. C., M., St. P. & P. Ry. Co., 66 F.2d 692; Bernola v. Penn. Ry. Co., 68 F.2d 175. (e) The plaintiff by walking along the path by the tracks, without looking around or taking any heed to his danger from trains approaching from behind, assumed the risk from such danger. C. & O. Ry. Co. v. Nixon, 271 U.S. 219, 46 S.Ct. 495; Carfelo v. D., L. & W. Ry. Co., 54 F.2d 477; Jacobson v. C., M., St. P. & P. Ry. Co., 66 F.2d 691; Jones v. St. L.-S. F. Ry. Co., 325 Mo. 1159, 39 S.W.2d 482; Davis v. Penn. & Reading Ry. Co., 276 F. 190. (2) The failure of the plaintiff to keep a lookout behind him in walking along that path beside the busy main line track was the vital element in the issue of his assumption of risk, which was not submitted to the jury in plaintiff's main Instructions 1 and 2. Bernola v. Penn. Ry. Co., 68 F.2d 175; Karr v. C., R. I. & P. Ry. Co., 108 S.W.2d 49; Norfolk & Western Railroad Co. v. Gesswine, 144 F. 60; C. & O. Ry. v. Nixon, 271 U.S. 219, 46 S.Ct. 495; Witham v. Delano, 184 Mo.App. 682, 171 S.W. 991. Omission of this essential factor in these instructions purporting to cover the case was reversible error and amounted to misdirection. Delfosse v. United Rys. Co., 201 S.W. 862.

Trusty, Pugh & Trusty and Guy W. Green, Jr., for respondent.

(1) The enginemen admitted they actually saw and realized Evans was in imminent peril of being struck in time to warn him and prevent the collision. Witham v. Delano, 184 Mo.App 677, 171 S.W. 992; Womack v. Mo. Pac. Ry. Co., 88 S.W.2d 368; Simmons v. Louisiana Ry. Co., 90 So. 24; Stool v. So. Pac. Co., 172 P. 101; Newkirk v. Pryor, 183 S.W. 682; Hinzeman v. Mo. Pac. Ry. Co., 81 S.W. 1134. (a) Defendant placed crew including plaintiff in bunk cars along track and was charged with knowledge of their presence about the tracks and was required to anticipate their presence on and about tracks and exercise due care for their safety. Crecelius v. C., M. & St. P. Ry. Co., 223 S.W. 413; Chicago, etc., Railroad Co. v. Kane, 33 F.2d 866; Engel v. C., B. & Q. Ry. Co., 195 N.W. 523; Van Zandt v. P. B. & W. Ry. Co., 93 A. 1010; Stool v. So. Pac. Ry. Co., 172 P. 101; Dutrey v. P. & R. Ry. Co., 108 A. 620; L. & R. Co. v. Parker, 138 So. 231. (b) All the extra gang men frequently and customarily used the path next to the north rail in going between the station and the bunk cars and this was the only way for them to go and defendant had no right to expect a clear track at that point. Pathway was of long standing. C. & E. Railroad Co. v. Mitchell, 110 N.E. 680; Greenwell v. C., M. & St. P. Ry. Co., 224 S.W. 404; Kidd v. C., R. I. & P. Ry. Co., 274 S.W. 1079; Kippenbrock v. Wabash Railroad Co., 194 S.W. 50; Hubbard v. Wabash, 193 S.W. 579; Seaboard v. Beauregard, 239 U.S. 352, 36 S.C. 126; Glunt v. Penn. Ry. Co., 95 A. 109; South Ry. v. Smith, 205 F. 360. (c) Defendant owed plaintiff a duty to keep a reasonable lookout for him and give him reasonable warning because he was not regularly engaged as a trackman and was not engaged in his work at the time but was leaving his place of work under his foreman's instructions. M. P. v. Craft, 69 F. 124; Davis v. Rock Island, 158 N.W. 911; State ex rel. Ambrose v. Trimble, 263 S.W. 840; Greenwell v. C., M. & St. P. Ry. Co., 224 S.W. 404; Kidd v. C., R. I. & P. Ry. Co., 274 S.W. 1097; Kippenbrock v. Wabash, 194 S.W. 50. (d) Defendant owed plaintiff a duty to exercise reasonable care to protect him from danger because he was obeying an order of his superior at the time he was injured. Mitchell v. Wabash, 69 S.W.2d 286; Wyatt v. N. Y., etc., Ry. Co., 45 F.2d 705; Schantz v. N. P. Ry. Co., 173 N.W. 556; Glunt v. Penn. Ry. Co., 95 A. 109; M. P. v. Craft, 69 F. 124; State ex rel. Ambrose v. Trimble, 263 S.W. 840. (e) Plaintiff introduced substantial evidence of a custom to warn and a violation of this custom. Mitchell v. Wabash, 69 S.W.2d 286; O'Donnell v. B. & O., 26 S.W.2d 929; S. L. C. F. F. Ry. Co. v. Jeffries, 276 F. 73; McComb v. Santa Fe Railroad Co., 294 P. 81; Jones v. Joey, 128 Mass. 585; Kelly v. Central Ry. Co., 180 A. 767; Kelly v. Central, 185 A. 46; State ex rel. v. Haid, 185 S.W.2d 478; Clark v. Term. Railroad Assn., 111 S.W.2d 168; Kroll v. Penn. Ry. Co., 135 A. 203; McGovern v. P. & R. Ry. Co., 35 S.Ct. 127, 235 U.S. 389; Brock v. M. & O. Ry. Co., 51 S.W.2d 100; Smith v. C., B. & Q. Ry. Co., 15 S.W.2d 794. (f) There was sufficient evidence that plaintiff did not receive any warning whether by bell or whistle, and the ringing of the bell would be insufficient if the situation indicated other warning was required Herrell v. Frisco, 23 S.W.2d 102; Advance Transfer Co. v. C., R. I. & P. Ry. Co., 195 S.W. 566; Underwood v. St. Louis, etc., Ry. Co., 168 S.W. 803; Doyle v. M., K. & T. Ry. Co., 185 S.W. 1175; Mills v. Mo. Pac. Railroad Co., 94 S.W. 973; Engel v. C., B. & Q. Ry. Co., 195 N.W. 523; Simmons v. La. Ry. Co., 90 So. 24; Koonse v. Mo. Pac. Ry. Co., 18 S.W.2d 467. (g) The plaintiff could not assume the risk because an employee never assumes the risk of his master's negligence unless he is aware of such negligence. McGovern v. P. & A. Ry. Co., 235 U.S. 389, 35 S. C. R. 127; Jenkins v. Wabash Ry. Co., 73 S.W.2d 1002; Boldt v. Pa. Ry. Co., 245 U.S. 441; C. & O. Railroad Co. v. Proffitt, 241...