Hallihan v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1879
• Parties: HALLIHAN v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 113

HALLIHAN

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Geo. W. Easley for appellant.

Tichenor & Warner for respondent.

SHERWOOD, C. J.

Action for damages for injuries resulting in the death of plaintiff's husband. Plaintiff had judgment for $5,000. The yards of defendant, where the accident occurred, are about ten acres in extent, and covered with a net-work of tracks, where the switching of cars and the making up of trains was going on almost continuously during the busy season. It seems to be the customary manner of switching cars in the yard of defendant for the engine to take the cars up toward the bridge then “kick” them off, when they are cut off by yardmen to run on the different tracks wherever wanted; and that cars cannot be coupled at all, without the cars switched have acquired a sufficient momentum to strike the cars to which they are to be coupled, with a considerable degree of force, enough to move the cars with which they come in contact, a distance of several feet. Harris, a car repairer of defendant's cars, was, at the time of the accident, at the south end of a car recently repaired and engaged in inspecting it. That car stood on a track running near the freight depot, and close to the platform of the depot, which track was used by defendant for transferring freight from defendant's road to others. There cars would be placed which had to be unloaded into or loaded from, the cars of other roads. This track was entirely distinct and apart from the repair track. South of, and below the car being inspected, on the same track, and distant nearly a car's length, was a string of fifteen or twenty cars, and to the north, or in the direction of the bridge, there stood one car, though not, it seems, on the same track. There was a switch 100 yards north of the car Harris was examining, the track there inclining to the south from the switch. About 175 feet from the freight depot stood a tool house some ten by twelve feet in size, six or seven feet from the track, where that, after running south from the switch, bore off to the west before reaching the tool house. There was evidence that this house would in all probability obstruct the view of cars coming down the track, but that a man standing on the freight depot platform, could see a car running down the track, if he looked.

While Harris was engaged in the work of inspection, and either under the south end of the car, or else standing on the track at the south end of the car, Hallihan, who was a car repairer of the Mo. R., Ft. S. & G. R. R. Company, had been so for several years, and was thoroughly conversant with the custom of defendant's yards in respect to its method of distributing cars by means of running switches, being accustomed to being about the yards every day, came along on the freight depot platform, and while there or else near Harris, the latter spoke to him to look how certain repairs had been done on the car being inspected. Hallihan, it seems, complied, or attempted to comply with the request made him, when a freight car switched in the usual way, and not coming down very fast, drove the car Harris was examining a distance of seven or eight feet, ran against Harris and over Hallihan, resulting in the death of the latter. The position Hallihan occupied at the time of the fatal occurrence, it is impossible to determine. Harris says: “I had no time to look to...