Haines v. Chicago, R. I. & P. Ry. Co.

• Citation: 193 Mo. App. 453,185 S.W. 1187
• Decision Date: 06 March 1916
• Docket Number: No. 11382.,11382.
• Parties: HAINES v. CHICAGO, R. I. & P. RY. CO.
• Court: Court of Appeal of Missouri (US)

185 S.W. 1187

193 Mo. App. 453

HAINES v. CHICAGO, R. I. & P. RY. CO.

No. 11382.

Kansas City Court of Appeals. Missouri.

March 6, 1916.

Rehearing Denied May 22, 1916.

Appeal from Circuit Court, Daviess County; Arch B. Daviess, Judge.

Action by Ora M. Haines, administratrix, against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Paul E. Walker, of Topeka, Kan., and A. G. Knight, of Trenton, for appellant. Hubbell Bros., of Trenton, for respondent.

JOHNSON, J.

Plaintiff, the widow of Harry B. Haines, deceased, brought this suit, as administratrix of his estate, to recover damages for his death, which she alleges was caused by negligence of defendant. At the time of his death, which occurred January 28, 1912, after midnight, Haines was the head brakeman on an extra freight train engaged in interstate commerce, and the pleaded cause of action is based upon the Employers' Liability Act approved April 22, 1908, as amended by the act of April 5, 1910. The train, composed of a locomotive, 30 or 35 freight cars, and a caboose, had been held nearly four hours on the passing track at Tindall, a station six miles north of Trenton, which is a division station for defendant's railroad, and Haines was killed by the starting of the train, being run over and cut in two by the rear wheels of the first car from the engine. The amended petition on which the case was tried alleges that it was the duty of the engineer not to move the train without a signal from the head brakeman, and that his negligent breach of such duty was the proximate cause of the death of the brakeman. The answer is a general denial and pleas of contributory negligence and assumed risk. A trial to a jury resulted in a verdict and judgment for plaintiff, and defendant appealed.

The record is voluminous, but the facts material to the present inquiry may be stated as follows:

The tracks at Tindall run north and south, and consist of a main track, a passing track, and a house track; the former being in the middle and on the west side of the station. The extra freight train was south-bound, and was run onto the passing track and stopped with the engine near the south end of that track. It was held there nearly four hours for other trains, both passenger and freight, to pass. The locomotive was about 10 car lengths south of the depot and during the long wait Haines, and perhaps others of the crew, spent most of the time in the depot, where it was warm, and where he enjoyed the companionship of some of the townsmen.

The evidence of plaintiff tends to show that Haines was under duty to watch a road crossing a short distance from the depot, and to attend to having the crossing opened if a traveler appeared on the public road, and that he was at his proper post for the performance of such duty, which it appears required no performance that night, as no belated traveler appeared to demand that the crossing be opened. On the other hand, there is evidence that while in the depot Haines was duty free and participated in a carousal with the townsmen, which was generated and accelerated by the frequent passing of a jug of whisky one of the late arrivals brought with him.

A north-bound freight train came in and was held at Tindall until after the passage of the north-bound limited passenger train. The house track was full of cars, and the only available place for that train was on the north end of the passing track. Accordingly it pulled up on the main line, backed in on the passing track, and stopped with its caboose a short space — perhaps a car length — from the caboose of the south-bound train. The passing track was not long enough to receive the entire train, and its north end extended into and fouled the main line. Under defendant's rule the limited, being a superior train, was entitled to a clear track, and it was the imperative duty of the operators of these freight trains, since they had to foul the main track, to warn the limited and exert all possible haste to clear the track. To do this they were compelled "to saw by" — to borrow a term from railroad slang — which meant that they were to remain stationary until the limited cleared the south end of the passing track, and then both freight trains were to move south; the front end of the extra freight passing onto the main line a sufficient distance to allow the north-bound freight to back entirely onto the passing track and thereby clear the way for the limited. The main line was protected by the block system, which, as we understand, would signal the coming of the limited when it was still several miles away. It was the duty of the rear brakeman of the north-bound freight (the witness Calder) to go back some distance beyond the south switch to signal the engineer of "the limited" to stop, and to inform him of the situation. Ten or 15 minutes before the coming of the limited, Calder and Haines walked from the depot south to the locomotive of the extra freight train, and remained there until the block signal heralded the approach of the limited. Calder testified:

"As we came up by the cars, there was a leak in the air hose. I don't know where it was, but some place between the depot and the engine; and he [Haines] said, `There is leak enough to blow your head off.'"

For some reason (not explained) Haines, whose duty it was — so plaintiff claims — to repair such a leak, if he could, did not stop, but went on with Calder, and visited with him in the cab of the engine 10 minutes or more, until warned of the coming of the limited. That signal was also the signal for the freight train crews to begin preparing for the movement to "saw by." Calder was to go down the track and stop the limited long enough for him to board the engine and ride back to the rear end of his own train. Haines was to go to the switch in time to throw it after the passage of the limited, in order that his train could advance on to the main track. Calder testified that Haines had plenty of time to fix a leak in the air hose before going to the switch, and that when they left the cab in response to the block signal Haines remarked that he was going back to fix the air hose.

Defendant objected to this testimony, but the objection was overruled. No one saw Haines alive after that. As soon as the block signal showed a clear track after the passage of the limited, the engineer of the extra freight sounded two blasts of the whistle and started up. No one was at the switch, and he stopped, or slowed down, and blew the whistle four times for a signal from Haines. Receiving none, his fireman took a switch key and went forward from the engine and turned the switch. Becoming alarmed over the absence of Haines from his post, the crew made a search and found his body cut in two, and the indications were that he was under the first freight car when the train started. Ten cars had passed over his body. The engineer admits that he started without a signal from Haines or any member of either crew, and claims that he was justified in doing so when the block signal showed a clear track, and that the only duty he owed his crew and others was to do what he did — give a signal on his whistle that he was about to start. The printed rules of defendant did not deal with this precise subject, and there is evidence pro and con on the issue of the custom and practice of train operators in such cases.

Witnesses for plaintiff (chiefly discharged employés of defendant) testified that the invariable custom was for the engineer in such situation not to start without a signal from the head brakeman or conductor, while the witnesses for defendant say there was no such custom, and that the engineer's warning signal of two blasts on the whistle was the only signal required by custom or for the proper protection of the crew. If we were exercising the functions of triers of fact, we would not hesitate in finding that the weight of the evidence on this issue is greatly on the side of defendant; but our duty to examine and weigh evidence stops when we find it presents a substantial controversy about which reasonable minds might reach different conclusions. We cannot say as a matter of law that plaintiff's evidence lacks probative strength, and therefore must hold that its weight, as well as the issue of the credibility of plaintiff's witnesses, were issues of fact, which have been definitely and irrevocably settled by the verdict. We must assume that the engineer negligently violated a known and invariable custom in starting the train without a signal from the head brakeman or conductor, and on no other signal than that from the semaphore.

But it is argued that Haines was not in the discharge of any duty of his service at the time of his death. There is evidence to support a conclusion that he was drunk, and without any reason deliberately crawled under the car; but there is abundant evidence that he was sober, and had not drunk from the jug, and there is some evidence — i. e., the testimony of Calder — that there was a leak in the air hose which it was the duty of Haines to try to repair. The engineer and fireman say there was no such leak, and that the indicator in the cab of the engine showed the line of air hose was sound and intact. Counsel for plaintiff point to the failure of defendant to introduce as witnesses the inspectors, who must have inspected the hose shortly after the arrival of the train at Trenton. Here again we would say that the evidence of defendant has the greater force, but that of plaintiff is substantial, and we are bound by the verdict to accept it.

From Calder's testimony it appears that Haines said the air had been leaking before the train reached Tindall. If that is so, it is hard to understand why Haines waited almost four hours, and until the coming of the limited was signaled, before starting out to...