Gabal v. St. Louis & S. F. R. Co.

• Decision Date: 31 May 1913
• Citation: 158 S.W. 12
• Court: Missouri Supreme Court
• Parties: GABAL v. ST. LOUIS & S. F. R. CO.

158 S.W. 12

GABAL v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

Rehearing Denied June 17, 1913.

1. MASTER AND SERVANT (§ 281)—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — HUMANITARIAN DOCTRINE—EVIDENCE.

Plaintiff, a car repairer in switchyards, was struck by cars moved backwards while he and a coemployé were moving a truck in the

yards. They were on a cinder path. Plaintiff was familiar with the situation, and he went over onto the track shortly before the accident, when he shifted his position to one of hazard. The cars were 60 or 70 feet away. He neither saw nor heard the cars. Held, that the employer was as a matter of law not liable under the humanitarian doctrine.

2. MASTER AND SERVANT (§ 248)—INJURY TO SERVANT—LIABILITY—HUMANITARIAN DOCTRINE.

An employé in switchyards who is familiar with the situation must look out for himself, and trainmen seeing him in a place of danger may assume that he will avoid the danger, and the humanitarian doctrine can only be invoked from the time the trainmen see that he will not protect himself.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Frank Gabal against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. F. Evans, of St. Louis, and Cowherd, Ingraham, Durham & Morse, of Kansas City, for appellant. Strother & Campbell and Reed & Harvey, all of Kansas City, for respondent.

GRAVES, J.

Action for personal injuries. Verdict and judgment for plaintiff in the sum of $8,500, from which judgment the defendant has appealed.

Plaintiff's petition is in two counts. The first pleads divers specific acts of negligence upon the part of the defendant, but, inasmuch as the plaintiff by his instructions nisi abandoned this count of his petition, further note thereof becomes unnecessary. The second count of the petition proceeds upon the humanitarian doctrine. This count alleges that the place of accident was at a place continuously used by pedestrians, and pleads facts attempting to place the duty upon defendant to be on the lookout for persons at such place. In other words, the theory of the pleader evidently was that the circumstances of the case were such as involved that branch of the humanitarian rule, which permits a recovery where the defendant saw, or by the exercise of ordinary care night have seen, the perilous position of plaintiff in time to have prevented the accident. But whilst the petition proceeds upon the theory that the defendant would be liable for failing to see the peril of plaintiff, when by the exercise of ordinary care it might have seen and known such peril, yet by his instructions the plaintiff abandons that theory, and presents his case below upon the single idea that the defendant saw his peril in time to have averted the injury, but negligently failed to use any effort to avert it after so seeing such perilous position. Excluding the instruction upon the measure of damages and other minor formal instructions, the instructions asked by plaintiff and given by the court read:

"The jury are instructed that if you find that plaintiff was walking along the track of the defendant directly toward the place where he was hurt, and with his back toward the train of cars, and that he was manifestly approaching a point near No. 5 switch, where he would be struck by said train, and was manifestly unaware of the approach of said train, and that the servants of defendant in charge of said train saw and knew the position of said plaintiff and the direction in which he was moving and had good reasons to believe as reasonable men that the plaintiff was unaware of the approach of said train that he would not turn around or stop, but would continue to proceed to a point where he would be struck by said train, and after such knowledge and notice had time, by the exercise of reasonable care and diligence, to have stopped said train and averted the injury to the plaintiff and that they carelessly and negligently failed to do so, then you may find in favor of the plaintiff, and this is true, even though the plaintiff may have been careless and negligent in placing himself in a position of danger."

"(2) If you find from the evidence that plaintiff was at a point near switch No. 5, and in a position where he was in imminent peril of being struck by defendant's train of cars, and that defendant's employés in charge of said train of cars knew of his peril of being struck in time to have averted the injury to plaintiff, and did not, after seeing plaintiff in said position, have reasonable grounds to believe that plaintiff would escape from said perilous position, and if you further find that said employés, after they knew the facts aforesaid, if such were the facts, failed to exercise reasonable care and diligence under the circumstances to stop said train of cars; that, if they had used such reasonable care and diligence, they could have stopped said train in time to have avoided injuring the plaintiff, and that in failing to stop the same they were careless and negligent, and that by reason thereof the plaintiff, Gabal, was struck and his leg cut off, then you may find in favor of the plaintiff, and this is true, even though you may believe that Gabal was negligent in being in the place where he was injured."

Defendant's answer was (1) a general denial; (2) usual plea of contributory negligence; and (3) assumption of risk. It will be observed that the case is much shortened by reason of the theory finally adopted by plaintiff in the instructions above set out. Defendant urges several errors upon the part of the trial court, and among them the court's failure to give a peremptory instruction for the defendant. These contentions, so far as necessary, will be noted in the course of the opinion. The foregoing outlines the case.

1. Plaintiff is an experienced car repairer, and for some years had worked in one of defendant's switchyards in Kansas City. He was perfectly familiar with the operation of trains, cars, and switch engines in the switchyard. The defendant vehemently urges its demurrer to all the evidence, and a further statement of the facts becomes necessary.

In the switchyard was what in railroad parlance is called a "lead." This is the main line of the yard, and is continuously used by the switching crew in shifting cars from one place to another. This "lead" runs north and south, and to the west of it, and running into it are a number of tracks. To the east of this "lead" was a cinder pathway, the width of which is a disputed question. The space between the ties, from end to end of the ties, were filled with cinders, thus placing the pathway and the top of the ties on the same level. To the east of this pathway was a ditch or drain. On the morning of the accident the plaintiff had been directed by his foreman to get a drawhead and put it in a foreign car then standing in the yard. Plaintiff had with him his brother-in-law, Cook. Cook procured a freight truck, about two feet wide, and the two proceeded north on this cinder path until they reached a point where the plaintiff had "spotted" a drawhead suitable for his purpose. This they loaded upon the truck and proceeded south with it, until they reached No. 5 switch stand, when they were run into by some cars which were being backed down the "lead" from north to south; the destination of a part of the cars being this switch track No. 5. Plaintiff says that he and Cook were taking this truck along the cinder path, when he was struck, and had his right leg run over and right foot cut off. He says Cook was in front pulling the truck, and he was behind, with a short board, pushing the truck by having one end of the board against the drawhead upon the truck and the other end against his shoulder. He also says that the path was only two feet wide at the point of accident, and he was in this path, pushing the truck as above indicated when he was run down and struck. Cook says that plaintiff's right foot was over the east rail of the track when he noticed him. The evidence for plaintiff also shows that neither plaintiff nor Cook saw or heard the backing switch engine and cars. So much for the situation from plaintiff's standpoint.

On the other hand, the facts appear thus: To the north of switch stand No. 5 was switch stand No. 8, at a distance of 177 feet. At this stand No. 8 were several diverging tracks to the west of the "lead." Defendant's switching crew had pulled out seven cinder cars from one of these tracks, through switch No. 8, and then pulled them out north such a distance as to have the last car clear the switch,...