Hamm v. Chicago, B. & Q. R. Co.

• Decision Date: 06 November 1922
• Docket Number: No. 14335.,14335.
• Citation: 211 Mo. App. 460,245 S.W. 1109
• Court: Missouri Court of Appeals
• Parties: HAMM v. CHICAGO, B. & Q. R. CO. et al.

245 S.W. 1109

211 Mo. App. 460

HAMM v. CHICAGO, B. & Q. R. CO. et al.

No. 14335.

Kansas City Court of Appeals. Missouri.

November 6, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Roy Hamm against the Chicago, Burlington & Quincy Railroad Company, William G. McAdoo, Director General of Railroads, for whom James C. Davis, Agent designated by the President under the Transportation Act of 1920, was substituted, and Millard F. Hughes. Judgment for plaintiff, and defendants appeal Affirmed as to defendant Davis, and reversed as to defendant Hughes.

For opinion of Supreme Court, see 235 S. W. 1046.

H. J. Nelson, E. M. Spencer, and J. G. Trimble, all of St. Joseph, for appellants.

Wm. E. Stringfellow, of St. Joseph, for respondent.

ARNOLD, J.

This is a suit in damages for personal injury. Plaintiff was an employee of the Cent::al Coal & Coke Company, and his duties consisted in driving an autotruck and in loading and unloading coal into and from said truck. The yards of the Central Coal & Coke Company at St. Joseph, Mo., are located a short distance north of the Union Station and adjacent to the railroad yards maintained by defendant railroad company.

The defendant Chicago, Burlington & Quincy Railroad Company is a corporation duly organized and existing, and at the time of the injury in question owned, maintained, and operated a line of railroad through the city of St. Joseph, with spur tracks, side tracks, and switch tracks at various points in said city. One of said tracks ran north and south, east of Sixth street and parallel thereto, from the yards of said railroad company to the coalyard of one John W. Bruce at Sixth and Olive streets, the said track passing through the property leased to and occupied by the Central Coal & Coke Company.

At the time of the alleged injury defendant William G. McAdoo was Director General of Railroads of the United States. Defendant Millard F. Hughes was a locomotive engineer in the employ of defendant railroad company and William G. McAdoo, Director General, and was operating the locomotive attached to the train which caused the injury.

The yard of the said coal company is 600 feet in length and 115 feet in width, divided into two narrow tracts from north to south, called the east and west yard. The barn and coal sheds form the dividing line, the barn to the north and fie coal sheds to the south, extending almost the entire distance from the north to the south lines.

Defendant railroad maintained a switch track on the east side of said barn and coal sheds, over which cars are switched to the coalyards of the Bruce Coal Company. The only opening in this long dividing line is about the center of the yard, and consists of a passageway, 11 feet 2 inches in width, between the barn and the coal shed. It is necessary to go through this passageway in going from one side of the yard to the other and to cross the switch track. The railroad company also maintains a stub track, situated in the east side of the yard of the Central Coal & Coke Company. The coal shed opens to the east and the barn to the west.

All Coal for delivery is loaded into the trucks and wagons from the east yard, either from the coal sheds or the stub track whereon loaded cars are set. The entrance for wagons and trucks is at the northeast corner of the yard; thence across to the office at the north end of the west yard where orders are received for delivery. The wagons and trucks then proceed south in the west yard, crossing through the passageway to be loaded from the sheds or the cars placed on the stub track. The east track was for the exclusive use of the Central Coal & Coke Company (hereinafter called the coal company). The construction of the yard as above described had existed for many years, and the manner of operation had been as indicated.

The evidence shows that the west rail of the west track was located about 5 feet from the east line of the coal shed and about 6 feet from the barn, so that in switching cars on that track, the sides thereof were within about 18 inches of the shed, and the cab of the switch engine almost touched the side of the shed. The evidence also shows there was no schedule; trains were Irregular and infrequent, and it had been the custom for many years for defendant railroad company to have a man at said crossing ahead of trains to warn any employees of the coal company who might be about to drive through said opening and upon said crossing.

On October 15, 1918, after having delivered two loads of coal, plaintiff returned to the yard, in accordance with his orders and the custom, drove in at the northeast gate, across to the west yard and office, and obtained an order for his next load. He then proceeded south in the customary manner, and turned east to pass through the aforesaid opening between the barn and the coal shed, to obtain the load from a car which was set on the stub, or east track. Plaintiff testified he was running slowly, just barely moving, and that his truck engine was making very little noise; that at a point 20 feet west of the west track he listened carefully for the sound of a train, but heard no bell ringing, or other sound indicative of an approaching train, and saw no railroad employee at the crossing. Thereupon he drove through the opening, and as soon as he got through it he looked to the right and saw the train approaching a few feet away; he immediately turned his truck to the left in an attempt to avoid the train, but was caught by the box over the journal on the left side of the first car, just at the point of the autotruck where plaintiff was seated, and that he and the truck were mashed through the side of the barn, and plaintiff received a permanent injury therefrom.

The petition alleges that plaintiff was in the exercise of proper care and caution in approaching said crossing, and charges defendants were negligent, in that they—

"carelessly and negligently operated a locomotive engine and cars, going in a northerly direction, along and over said track, against, upon, and over the autotruck in which plaintiff was riding, and carelessly and negligently drove said engine and cars along and over said track at said point without causing any bell upon the engine to be sounded, and without giving any signal or warning of any kind or character in approaching said point and while passing"along and over said track, and carelessly and negligently drove said engine and cars along and over said track without having any person on the forward end of said engine and cars as they were being moved northward, and without sending a man ahead of said engine and cars to said passageway or crossing, and without having a man stationed at said crossing for the purpose of warning the employees of said Central Coal & Coke Company who might be about to come through said passageway or across said crossing. * * *"

The defendant railroad company in its answer admits that during the month of October, 1918, William G. McAdoo was Director General of Railroads, but denies generally each and every other allegation in the amended, petition. And as a special defense alleges that—

"The line of railroad, tracks and switches described in plaintiff's amended petition was not in the possession of and was not being operated by this defendant during the times therein mentioned, but was in fact in the possession of and being operated by the United States government through its duly appointed agent and officer, the Director General of Railroads. * * *"

The answer further pleads that on the 26th day of December, 1917, the United States government took possession of all the property of defendant Chicago, Burlington & Quincy Railroad Company and operated the same. The answer also specially pleads General Order No. 50 of the Director General of Railroads of October 28, 1918, directing that all suits sought to be prosecuted upon causes of action accruing during government control and possession of railroads shall be prosecuted against the said Director General of Railroads, and in no other manner; that afterwards, to wit, on the _____ day of January, 1919, the said Director General issued a further order known and designated as Order No. 50a, providing that all actions at law growing out of injuries to persons arising since December 31, 1917, and growing out of the possession, use and control or operation of any railroad by said Director General, which actions, but for federal control, might have been brought against the carrier company, shall be brought against the Director General of Railroads' and not otherwise; and that the pleadings in all such actions then pending might, on application, be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom. The answer further pleads contributory negligence.

The separate answer of defendant Director General of Railroads admits that he was the duly appointed and acting Director General of Railroads, that he was in possession and control and operating the lines of the defendant railroad company during the month of October, 1918, as alleged in the petition, and generally denies all other allegations therein contained. There is also a plea of contributory negligence.

The answer of defendant Millard F. Hughes was a general denial.

Under the pleadings thus made the cause went to trial before the court and to a jury, resulting in a verdict and judgment in favor of plaintiff and against all the defendants in the sum of $2,500. Motions for new trial and in arrest, in behalf of all the defendants, were duly filed and by the court overruled. Defendants appeal.

Assignment of error No. 1 urges that the court erred in refusing to give the instructions offered by the defendant railroad company in the nature of a demurrer to the evidence, at the close of plaintiff's case, and again at the close...