Gray v. Wabash R. Co.

• Decision Date: 31 December 1913
• Citation: 162 S.W. 672,179 Mo. App. 541
• Parties: GRAY et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

162 S.W. 672

179 Mo. App. 541

GRAY et al. v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. MASTER AND SERVANT (§ 278)—INJURIES TO SERVANT—ACTIONS—EVIDENCE—SUFFICIENCY.

In a suit by the parent of a minor child to recover for his wrongful death while in the service of a railroad company, evidence held insufficient to show that the defendant required the infant to work about trains contrary to his parents' direction.

2. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE—STANDARD OF CARE.

An infant 18 years of age is not held to the degree of care to be reasonably expected of an ordinarily prudent man but is bound to exercise that degree of care to be reasonably expected of an ordinarily prudent youth of his age.

3. MASTER AND SERVANT (§ 236)—INJURIES TO SERVANT—ACTIONS—CONTRIBUTORY NEGLIGENCE.

Deceased was a messenger for the telegraph operator at a railroad station and employed by the railroad company to handle its train messages. The agent delivered a message to the operators of a moving train by means of a wire hoop, which was thrown off after the message was read, deceased being directed to get the hoop, instead of waiting until the train passed and picking it up in the usual manner from where it was thrown, ran after the train trying to reach the brakeman and take the hoop from his hand, and he ran against a semaphore pole, which was in the platform 100 feet distant, and was thrown under the train and killed. Held that, even though he was only 18 years of age, yet, as he ran blindly for over 100 feet before he struck the pole, he was guilty of contributory negligence, as a matter of law.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by Samuel Gray and another against the Wabash Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

J. L. Minnin, of St. Louis, and Robertson & Robertson, of Mexico, Mo., for appellant. Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for respondents.

ALLEN, J.

This is an action by plaintiffs, husband and wife, for the death of their minor unmarried son, alleged to have been caused by the negligence of the defendant railroad company. Plaintiffs recovered, and the defendant prosecutes the appeal.

This is the second appeal of the case. The opinion of this court on the former appeal will be found under the style of Gray v. Railroad, in 157 Mo. App. 92, 137 S. W. 324. Plaintiffs' son at the time of his death was about 18 years and 8 months of age, and resided with his parents in Centralia, Mo. It appears that a written contract of employment had been entered into between plaintiffs, the parents of the deceased, and the defendant, the latter's regular form of employment contract being utilized for such purpose; but it appears that the deceased's duties were to act as a messenger for the Western Union Telegraph operator at this station, who was also employed by the defendant to handle its train messages. Defendant's station agent also paid him a small sum per month for sweeping the station every morning.

On behalf of plaintiff there was testimony to the effect that there was an oral agreement between the boy's father and defendant's station agent to the effect that the boy was to "have nothing to do with the train service whatever," and would not be required to work about the trains.

At the time of the injury and death of plaintiffs' said son, the defendant maintained at this place a long platform extending some 300 feet along and north of its railway tracks, in front of its station, and which was perhaps about 16 feet in width. The tracks extended nearly east and west. In this platform stood a semaphore pole about 25 feet high, at the top of which were arms to be used for signaling purposes. It appears that this post stood nearly 5 feet from the outer or south edge of the platform and about 11 feet from the depot building, directly in front of the telegraph office.

On September 28, 1908, an east-bound freight train of defendant approached and was passing the station and platform at this place at a rate of speed that is estimated at from 6 to 10 miles per hour. It appears that orders were to be passed to the trainmen on this train by means of wire hoops; it being customary to deliver orders in this way to passing trains, the same being fastened to the hoops and the latter held aloft in order that some one on the train might catch them by running his arm therethrough, the hoops being thrown off upon the platform or premises near by after the orders had been taken therefrom.

Upon the day in question one Hampton, appellant's agent, was standing upon the platform about 100 feet west of the semaphore pole, with two of these hoops to be used to thus transmit orders to the crew of the passing freight train. Standing near him were the deceased, one McBride, who was the baggage man at this place, and one Montgomery. It appears that Hampton held one of the hoops aloft, and it was caught by the brakeman on the train who stood in the "gangway" back of the engine; and plaintiffs' witnesses testified that as this was done, and while Hampton was looking toward the train, he said, "Get the hoop." The testimony is that this order was spoken in an ordinary tone of voice, with nothing to indicate to whom it was directed. Deceased, however, apparently understood that it was directed to him. He thereupon ran east along the platform after the hoop which was then in the hands of the brakeman on the passing train, who was taking the order therefrom. Deceased thus ran, following the train, the aforesaid distance of about 100 feet, when he collided with the semaphore pole, whereby he was thrown against and fell beneath the passing train and was killed.

When the case was here before it was reversed for the reason that plaintiffs undertook to make a case under section 5425, Rev. Stat. 1909, and this court held that the petition stated no cause of action under that section. Upon motion of respondents there, the judgment of reversal outright was modified, and the cause was reversed and remanded for further proceedings.

Learned counsel for respondents now contends that this court, on the former appeal, adjudged that plaintiffs' case fell within section 5426, Rev. Stat. 1909, and that when properly presented the case was one for the consideration of the jury, and that such is now the law of this case. A reading of the former opinion, however, will readily disclose that nothing was there adjudicated except that plaintiffs had no cause of action under section 5425, supra, under which plaintiffs were then attempting to proceed, and that the case was not considered upon the merits.

A recovery is sought in part upon the theory that defendant committed an actionable wrong by imposing upon plaintiffs' deceased minor son duties not within the scope of the contract of hiring made with the father, in that deceased was permitted to perform duties about moving trains, and in part upon the theory that it was negligence on the part of defendant's station agent to give the order to "get the hoop" under the circumstances aforesaid, which is alleged to have been given suddenly and abruptly, whereby plaintiffs' son was startled, confused, and alarmed, and that the order was one that required instant and sudden execution, and that in executing the same it would be natural and probable that deceased would run after the hoop, keeping his eye upon it, and thus run against the semaphore pole and be injured.

Much of the argument in appellant's brief pertains to the question whether plaintiffs can have any right of action under section 5426, supra, growing out of the alleged violation of the contract of employment as aforesaid; appellant's position being that such wrongful act, if any,...