Eversole v. Wabash R. Co.

• Decision Date: 28 March 1913
• Citation: 249 Mo. 523,155 S.W. 419
• Parties: EVERSOLE v. WABASH R. CO.
• Court: Missouri Supreme Court

155 S.W. 419

249 Mo. 523

EVERSOLE v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1913.

Rehearing Denied April 8, 1913.

1. TRIAL (§ 255)—INSTRUCTIONS—REQUESTS.

Plaintiff should prepare and request to be given an instruction outlining the petitioner's theory of recovery, and, not doing so, should be bound by the court's attempt to outline it.

2. NEGLIGENCE (§ 75)—DANGER INCURRED TO SAVE OBJECT FROM "IMMINENT PERIL."

The object, in "imminent peril" from negligence which will permit a volunteer to rashly attempt to save it, and, being injured therein, recover for his injury of the one negligent, as though the original negligence were toward him, the volunteer, must be a human being; imminent peril to property is not enough.

3. NEGLIGENCE (§ 74)—DANGER INCURRED TO SAVE LIFE—ACTUAL PERIL.

Some one must be actually in peril from the negligence of another to permit a volunteer to rashly attempt rescue, and, being injured therein, to recover of the one negligent, or at least the circumstances must be such as to clearly convince the rescuer of the existence of such peril.

4. NEGLIGENCE (§ 136)—DANGER INCURRED TO SAVE LIFE — ACTUAL PERIL — EVIDENCE— QUESTION FOR JURY.

Evidence of a third person being in peril from defendant's negligence, or of the circumstances being such as to clearly convince plaintiff

of the existence of such peril, so as to allow him voluntarily to attempt rescue, and, being injured therein, to recover as though the negligence were against him, held insufficient to go to the jury.

5. NEGLIGENCE (§ 113) — IMMINENT PERIL DOCTRINE—PETITION.

The petition alleging that defendant's train, by reason of a defective coupling, which it was negligently using, broke away from the engine pushing it, thereby endangering human life, and plaintiff, an employé of another, recognizing the danger, and as the best means of averting it, stepped from the side of the road onto the footboard of the engine and signaled the engineer to increase his speed so as to overtake the train and allow plaintiff to readjust the coupling, and the engineer negligently failed to quickly and sufficiently increase his speed, so that the engine did not overtake the cars till they had run into another train, whereby he was injured between the engine and the cars, invokes the "imminent peril" doctrine simply, and does not rely on the engineer's negligence after plaintiff boarded the engine.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by L. H. Eversole against the Wabash Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

J. L. Minnis, of St. Louis, and Sebree, Conrad & Wendorff, of Kansas City, for appellant. Guthrie, Gamble & Street, of Kansas City, for respondent.

GRAVES, J.

Action for personal injuries. Verdict and judgment for plaintiff in the sum of $10,000, from which the defendant has appealed.

Plaintiff is an experienced railroad man, but was not an employé of the defendant. The negligence complained of is best stated in the following extract from the petition: "On or about the 20th day of August, 1906, and at about the hour of 3:30 p. m., the defendant company, through a crew of engine men and switchmen, was operating a train consisting of an engine and about 15 or 20 freight cars from the north onto and south through, across, and beyond the tracks of said Union Depot Company. The engine was on the north end of the train pushing the cars southwardly. At about the time said engine was entering upon the tracks of said Union Depot Company, the speed of said engine was slackened for the purpose of slackening the speed of said train as same proceeded over said Union Depot Company's tracks. Upon said engine being slackened, the momentum of said cars caused same to strain against the coupling device, connecting said engine and the nearest of said cars thereto, and said strain caused said coupling device to part and separate because said coupling device was at such time, and for a long time theretofore had been, through negligence of the defendant, in an unsafe, defective, and improper condition, so that same was not reasonably sufficient for the purpose of holding such cars to such engine and under the control of such engine under ordinary course of switching and moving such cars by means of such engine, all of which was known to the defendant, or could have been known to the defendant by the exercise of ordinary care. Upon said cars being so separated from said engine, going, as the same were at such time, at great speed and momentum and on the downgrade, there ceased to be any substantial means of controlling and checking the speed of such train as same should pass over and along parts of the track of said Union Depot Company, where such train at such speed and with such lack of control was likely to endanger human life and limb, unless through the means adopted by the plaintiff, as hereinafter stated. When said cars separated from said engine, said cars proceeded with increasing speed and said engine with diminishing speed, so that the space between the same was widening. Said engine was provided at the front end thereof with a footboard for the purpose of enabling switchmen to ride thereon, and, if necessary, operate said coupling device while said engine and cars to which same was to be coupled were in motion. The plaintiff at such time was an experienced switchman in the employ of another railroad company. As said engine and cars were moving and separating as aforesaid, they were passing the plaintiff, and plaintiff observed said lack of control, and recognizing the danger to human life and limb existing, and the best available means of averting danger to human life and limb, and as a most prudent and expedient thing to be done in the emergency, stepped toward said footboard on said engine and gave to said engineer a signal indicating to said engineer that the plaintiff, as a switchman, would ride upon said footboard, and that such engineer should increase the speed of such engine so as to quickly overtake said cars, enable the plaintiff to readjust such coupling device, and catch and hold said cars as quickly as possible, which signal said engineer understood and answered, rightfully accepting such tender of assistance by plaintiff, so that plaintiff stepped upon the footboard of said engine, prepared to reconnect such coupling device as soon as said engine, with increased speed, should overtake said cars, and said engineer increased such speed, but not promptly and sufficiently and with ordinary care and prudence, but negligently and with unnecessary delay and decrease of speed, so that the said engine did not overtake said cars so as to enable plaintiff to reconnect said coupling device until about the time that said string of cars, so drifting down and along said Union Depot tracks, struck and collided with another engine and train thereon, whereby said engine was brought into violent contact with the north end of said string of cars to which plaintiff was about to make such coupling, and said engine and coupling so broke, damaged, and pressed together with said cars as to injure the plaintiff as hereinafter stated." Answer was a general denial and a plea of contributory negligence.

Defendant insists upon its demurrer to the testimony, and this requires a more detailed statement of the situation. On the day in question, the defendant was making a transfer of a train of cars from its yards to the yards of some other company. In doing so the cars were pushed rather then pulled by the engine, although the engine was and had to be coupled to the cars. To get these cars to their destination, the defendant had to push these cars over a Burlington track, and from thence over a track known as track No. 9, running through the Union Station grounds or Union Depot yards at Kansas City. This track No. 9 is the track on the extreme south in these yards and is usually used for the making of such freight transfers, although other tracks 7 and 8 were sometimes so used. In passing along on the Burlington tracks, this transfer train had to pass under the Fifth street bridge. The engine was on the north end of the transfer train of about 15 cars. When the north car in the train reached the point of this bridge, the engine became detached from the train and separated therefrom by a car length or more. The cars were moving 8 to 10 miles per hour, and the track slightly downgrade. Three brakemen were on the cars, and the engineer signaled them to put on brakes. As the engine reached the bridge, an employé or watchman in a signal tower near the bridge, which is called in the evidence the north signal tower, gave notice to the watchman at the signal tower in front of the baggageroom at the Union Depot, and this watchman, seeing a Rock Island engine and its crew standing upon track No. 9, went down out of his tower and notified the engine crew to get off their engine because the transfer train was coming down their track detached from the engine. As stated, the plaintiff was an experienced railroad man. At the time he was a watchman for the Chicago, Burlington & Quincy Railroad, and was near this bridge when the defendant's engine reached that point. Seeing the situation and hearing some "hollowing" near the depot, he got on the moving engine for the purpose of coupling the engine to the train of cars running in front of it. Whilst in this position the south car of the train collided with the Burlington engine on track No. 9, and the engine upon which plaintiff was riding ran into and collided with the north car of the train, in which collision the plaintiff was seriously injured. Further details will be left to the opinion. This sufficiently outlines the case.

1. The court of its own motion gave the instruction which presented the case to the jury for the plaintiff. So far as the record shows, the plaintiff requested but two instructions: (1) An instruction...