Goodwin v. Missouri Pac. R. Co.

• Decision Date: 12 June 1934
• Docket Number: 31509
• Parties: Goodwin v. Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

72 S.W.2d 988

335 Mo. 398

Goodwin v. Missouri Pacific Railroad Company, a Corporation, Appellant

No. 31509

Supreme Court of Missouri

June 12, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge. Hon. Charles W. Rutledge Former Judge, Presided at the Trial.

Affirmed.

Thomas J. Cole and David E. Blair for appellant.

(1) The trainmen of a railroad are under no duty to look out for the safety of section men working along and upon the tracks, and other employees whose duties take them around, between and upon moving engines and cars. It is the duty of such employees to look out for their own safety, and trainmen are under no legal duty to warn them of train movements unless they see such employees in a position of danger and oblivious thereof. Kirkland v. Bixby, 282 Mo. 466, 222 S.W 462; State ex rel. v. Ellison, 271 Mo. 468, 196 S.W. 1088; Woods v. Railroad, 187 S.W. 12; Van Dyke v. Railroad, 230 Mo. 282, 130 S.W. 1; Degonia v. Railroad, 224 Mo. 564, 123 S.W. 807; Evans v. Railroad, 178 Mo. 517, 77 S.W. 515. This rule is not confined to employees working upon and along railroad tracks. It applies to any employee whose ordinary duty takes him where he is liable to be injured by train movements. Marks v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Hammontree v. Payne, 296 Mo. 487, 246 S.W. 16; Rashall v. Railroad, 249 Mo. 519, 155 S.W. 426; Gabal v. Railroad, 251 Mo. 269, 158 S.W. 12; Van Dyke v. Railroad, 230 Mo. 282, 130 S.W. 1; Brockenschmidt v. Railroad, 205 Mo. 443, 103 S.W. 964; Bruce v. Railroad Co., 271 S.W. 766; Jones v. Railroad, 325 Mo. 1153, 30 S.W.2d 48; Martin v. Railroad, 325 Mo. 1107, 30 S.W.2d 735; O'Donnell v. Railroad, 324 Mo. 1097, 26 S.W.2d 929. (a) An engine doing switching in a railroad yard is liable to be moved by the enginemen at any time, and, absent any proof that the enginemen in charge of defendant's engine had brought said engine to a stop for the purpose of keeping same stationary while plaintiff shoveled down coal in the tender, the movement of said engine at any time was one of the risks and hazards incident to the work plaintiff was doing and he assumed the risk of injury from such movement. There is no proof in this record that the engine had been brought to a stop to permit such work by plaintiff or that the enginemen had told plaintiff that the engine would not be moved without warning him. For this reason the trial court should have given defendant's peremptory instruction at the close of all the evidence. Curtis v. McNair, 173 Mo. 281, 73 S.W. 167; Dakin v. Mercantile Co., 197 Mo. 266, 94 S.W. 944; Hoffman v. Peerless White Lime Co., 317 Mo. 103, 296 S.W. 764; Jones v. Railroad, 325 Mo. 1153, 30 S.W.2d 481; Martin v. Railroad, 325 Mo. 1107, 30 S.W.2d 735. The defense of assumed risk is available under a general denial. Curtis v. McNair, supra; Dakin v. Mercantile Co., supra; Pringle v. Carthage Quarry Co., 199 S.W. 562. (b) If plaintiff fell down the pile of coal and was injured by a movement of the engine due to negligence of the enginemen, as he claimed, said injury was contributed to by plaintiff's own negligence in attempting to shovel coal in the tender when he had no reason to assume, if he did so assume, that the engine would not be moved while he was doing the work. Plaintiff was fully aware of whatever danger there was in doing the work while the engine was moving. At page 32 of the abstract plaintiff testified, "I didn't want to get up there and shovel coal because it was dangerous, he said they would stop for me, to go to supper, as they usually did." Being fully aware of the danger, plaintiff was negligent in attempting to do the work until he knew the engine would remain stationary. Cahill v. Railroad, 205 Mo. 407, 103 S.W. 532; Degonia v. Railroad, 224 Mo. 587, 123 S.W. 807. Where plaintiff's evidence shows his contributory negligence, a plea of contributory negligence in the answer is not required to entitle defendant to a peremptory instruction. Sissel v. Railroad, 214 Mo. 526, 113 S.W. 1104. (2) The petition contained no allegation of any custom or practice, requiring enginemen to give a warning by whistle, bell or other notice to men engaged in doing the sort of work plaintiff was doing of their intention to move the engine. It was the duty of the plaintiff to look out for his own safety. The enginemen owed him no duty to warn him of their intention to move the engine, unless they knew plaintiff was in a position of danger from such movement, of which there is no evidence. The humanitarian rule was not pleaded. For this reason, proof of a custom on the part of the enginemen to give such warning, in the absence of such legal duty, was reversible error. Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462; Marks v. Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Gabal v. Railroad, 251 Mo. 257, 158 S.W. 12; Degonia v. Railroad, 224 Mo. 592, 123 S.W. 807; Nivert v. Railroad, 232 Mo. 642, 135 S.W. 33; Jones v. Railroad, 325 Mo. 1159, 30 S.W.2d 481; Martin v. Railroad, 325 Mo. 1134, 30 S.W.2d 735.

Clay C. Rogers, Pross T. Cross and Mosman, Rogers & Buzard for respondent; A.B. Lovan of counsel.

(1) The appellant says that the court ought to have sustained defendant's demurrer to the evidence because "it was plaintiff's duty to look out for his own safety in doing the work in which he was engaged, and the enginemen were under no legal duty to warn him of intended movements of the engine unless they saw him in a position of danger." The authorities cited by appellant on this point are not applicable to the facts in this case. It was the duty of the defendant to warn plaintiff of the intended movement of the engine. Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S.W. 481; Tetwiler v. Railroad Co., 242 Mo. 178, 145 S.W. 782; Hardwick v. Ry. Co., 181 Mo.App. 156, 168 S.W. 332; Carbaugh v. Ry. Co., 2 S.W.2d 195; Newkirk v. Pryor, 183 S.W. 685; Dunn v. Railroad Co., 190 S.W. 968; Jetter v. Ry. Co., 193 S.W. 958; Weaver v. Ry. Co., 170 Mo.App. 284, 156 S.W. 1; Railroad Co. v. Fine, 44 S.W.2d 342; Hughes v. Railroad, 309 Mo. 560, 274 S.W. 709. (a) The appellant says further that the court ought to have sustained defendant's demurrer to the evidence because "plaintiff assumed the risk of injury in the work he was doing." "The servant never assumes the risk of the master's negligence." Curtis v. McNair, 173 Mo. 270, 73 S.W. 169; Daken v. Chase & Sons Mer. Co., 197 Mo. 238, 94 S.W. 951; Pringle v. Carthage Quarry Co., 199 S.W. 563; Compton v. Louis Rich Const. Co., 315 Mo. 1068, 287 S.W. 482; Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 773; Whittington v. Westport Hotel Operating Co., 33 S.W.2d 969. (b) The plaintiff was not contributorily negligent as a matter of law in starting to coal the engine after it had been brought to a stop, because on cross-examination of plaintiff the defendant developed the fact that plaintiff believed that the trainmen would not start the engine, knowing that he had been working there for five or six minutes, without giving him warning of their intention to start the same, and he had the further right to assume that the engine would not be started in any event by sudden, violent and unusual jerk. Johnson v. Waverly Brick Co., 276 Mo. 42, 205 S.W. 615; Carbaugh v. Ry. Co., 2 S.W.2d 199; Gordon v. Railroad, 222 Mo. 516, 121 S.W. 85; Woodward v. Railroad Co., 316 Mo. 1196, 295 S.W. 99; Evans v. Ry. Co., 178 Mo. 508, 77 S.W. 517; Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 773; Whittington v. Westport Hotel Co., 33 S.W.2d 963. (2) Appellant's "accident" instruction was properly refused. (a) Because there is no evidence in the record tending to show that plaintiff's injuries resulted from an unknown cause, but, on the contrary, his injuries were shown to be the result of positive acts of commission of the defendant constituting negligence. Hogan v. K. C. Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 714; Sloan v. Polar Wave Ice & Fuel Co., 19 S.W.2d 481; Wright v. Quattrochi, 49 S.W.2d 5; Brewer v. Silverstein, 64 S.W.2d 289; Mitchell v. Dyer, 57 S.W.2d 1082. (b) Because the refusal to give this instruction is not assigned as error in the motion for new trial, and is not reviewable. Szuch v. Ni Sun Lines, 58 S.W.2d 474. (3) It was not error to permit plaintiff to testify that it was the custom and practice of enginemen to give warning of intended movements of the engine. Caldwell v. Payne, 246 S.W. 317; Carbaugh v. Ry. Co., 2 S.W.2d 195; Brunke v. Mo. & K. Tel. Co., 115 Mo.App. 36, 90 S.W. 754; Gordon v. Railroad, 222 Mo. 516, 121 S.W. 80; Cassin v. Lusk, 277 Mo. 688, 210 S.W. 902; Norton v. Wheelock, 23 S.W.2d 147; Woodward v. Railroad Co., 295 S.W. 99.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff had a verdict for $ 30,780. A remittitur of $ 15,000 was ordered and made, and a new judgment entered for $ 15,780. Defendant has appealed from that judgment.

Plaintiff claimed to have been injured by getting coal in his eyes resulting in the loss of his left eye and the impairment of his right eye, while working for defendant as a section hand at Marshall in the fall (October or November) of 1924. The only evidence in the record as to how his injury occurred was plaintiff's own testimony. He said that frequently when freight trains came into Marshall there would be no coal in the front part of the tender so that the fireman could conveniently reach it when firing on the road. On such occasions, a section man would be ordered to shovel coal from the back part of the tender. They called this coaling the engine. The enginemen "generally went to supper" while the section men "coaled the engine." Sometimes several section men would work on the same tender and...