Hammontree v. Payne

• Decision Date: 08 December 1922
• Docket Number: No. 22825.,22825.
• Citation: 296 Mo. 487,246 S.W. 915
• Parties: HAMMONTREE v. PAYNE, Agent.
• Court: Missouri Supreme Court

246 S.W. 915

296 Mo. 487

HAMMONTREE v. PAYNE, Agent.

No. 22825.

Supreme Court of Missouri, Division No. 2.

December 8, 1922.

Motion for Rehearing Overruled December 22, 1922.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Jeanette C. Hammontree, administratrix of Robert P. Hammontree, deceased, against John Barton Payne, Agent of the United States. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans, of St. Louis, John H. Lucas and Wm. C. Lucas, both of Kansas City, and W. W. Wood, of Humansville, for appellant.

Herman Pufahl, of Bolivar, and C. W. Hamlin and Hamlin & Hamlin, all of Springfield, for respondent.

DAVID E. BLAIR, J.

Action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for wrongful death of plaintiff's decedent. Judgment below was for plaintiff in the sum of $10,000, and defendant has appealed.

Respondent was the wife, and is now the administratrix, of the estate of Robert P. Hammontree, deceased. On November 24, 1919, Hammontree suffered such injuries through alleged negligence of a train crew in the switchyards of the St. Louis-San Francisco Railway Company at Springfield, Mo., that he died two days thereafter. Deceased was a clerk in the bridge and building department of said railroad at Springfield. While returning from his lunch on said day he was fatally injured in passing between two cuts of freight ears through an opening left therein for the passage of employés from one side of the yard to another. An engine with one car was attempting to couple onto a string of four cars. The coupling was not made at the first effort, and a second and more forceful effort was made, which caused the four cars to move backwards quickly and close the gap of five or six feet through which deceased was passing. He was caught between the couplers of the cars, and his death resulted.

Deceased had worked in the same office for about 10 years and, according to some of the witnesses, habitually crossed through the switchyards rather than go around the public streets. There was a much-used path through the yards where employés crossed from one side of the yard to the other, in going to and from the yardmaster's office. The string of freight cars standing on the transfer track had been cut, and an opening left convenient for crossing the track at this pathway. Shortly before 1 o'clock and in broad daylight, the switching crew of defendant, consisting of engineer and fireman, a brakeman and foreman, was engaged in the switching movement above referred to. The engine was not over 200 feet from deceased as he came along the path near the corner of the yardmaster's office. No obstructions cut off his view of the engine or any part of the switching movement. He was an experienced man and, by frequent observation at least, familiar with the work the switching crew was attempting to do.

The foreman of the switching crew testified that he caught a glimpse of the deceased 50 or 60 feet from the track as he came around the yardmaster's office, walking in the direction of the transfer track. He did not see him again Until after he was injured. None of the other employés connected with such switching movement saw the deceased at all.

The defendant operates a railroad through Missouri and into adjoining states, and a large portion of its business is interstate commerce. Deceased was a clerk in the bridge and building department, which had to do with the building of bridges and culverts for said railroad, over which both intrastate and interstate trains passed.

The petition charged negligence of the switching crew in the following language:

"That when the agents, servants, and employés aforesaid first attempted to make the coupling with the four cars aforesaid, they saw the deceased going towards said passway and saw his perilous or apparently perilous position in time to have warned him of the danger in trying to cross said track through said passway, or by the exercise of ordinary care and diligence could have seen him and warned him of the danger in trying to cross said track through said passway, or could have placed a watchman at said passway, while they were attempting to make the coupling aforesaid, or they could have waited until he crossed said track before making the second effort to couple said cars, and, knowing the dangerous position and peril of the deceased, or which by the exercise of ordinary diligence they could have known, they, the said servants, agents, and employés of the defendant, without giving him any signal or warning, and without waiting for him to cross said track, caused the engine and car attached thereto aforesaid to strike and run against the four cars aforesaid with such force that they were pushed or shoved across the passway aforesaid and against the cars standing on the west side thereof."

Defendant offered no evidence and stood on its demurrer.

The first question which naturally suggests itself is whether or not the defendant company was guilty of negligence. By reason of his long employment, deceased was more or less familiar with railroad operation and particularly with the movements of switching cars in the switchyards, which, the evidence shows, he crossed very frequently. He knew how switching operations were performed. The members of the switching crew must also have known that deceased was familiar with the manner in which such work was performed. The foreman caught a glimpse of deceased near the corner of the yardhouse 50 or 60 feet away, apparently approaching the transfer track. He was not seen thereafter until he was injured. If the foreman had continued to observe him and the other members of the crew had seen him approaching the track, they would only have seen a man familiar with switching operations and an old employé of the railroad company approaching the track. They would have seen him clearly because it was...