Hill v. Kansas City Southern Railway Company

• Decision Date: 05 October 1914
• Citation: 170 S.W. 432,182 Mo.App. 380
• Parties: THOMAS E. HILL, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

170 S.W. 432

182 Mo.App. 380

THOMAS E. HILL, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 5, 1914

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

Cyrus Crane and Geo. J. Mersereau for appellant.

(1) The plaintiff's action in voluntarily riding on a car which he knew to be in "bad order" prevents his recovery. Hager v. Terminal Ry. Association, 207 Mo. 302. (2) The evidence is insufficient to make a case of negligence against defendant. The alleged custom in regard to the use of the yards was not proven. Shields v. Railroad, 87 Mo.App. 637; Boyd v. Graham, 5 Mo.App. 403; Lee v Railroad, 195 Mo. 400.

Walsh Aylward & Lee for respondent.

(1) Voluntarily riding upon the car in question, which happened to be labeled "bad order," does not prevent plaintiff recovering in this case. O'Flanagan v Railroad, 145 Mo.App. 276. (2) The evidence is sufficient to make a case of negligence against the defendant. Mason v. Railroad, 161 Mo.App. 620; Lewis v. Railroad, 142 Mo.App. 585. (3) The custom in regard to the use of the yards was abundantly proven. Barry v. Railroad, 98 Mo. 69; Yost v. Railroad, 245 Mo. 245. (4) The court did not err in modifying defendant's instruction No. 1 and in refusing to give defendant's instruction No. 6. Bible v. Railroad, 169 Mo.App. 532; Briscoe v. Railroad, 130 Mo.App. 521; Utley v. Talfree, 77 Mo. 309; Bowles v. Lewis, 58 Mo.App. 653; Mateer v. Railroad, 105 Mo. 353.

OPINION

TRIMBLE, J.

Plaintiff was foreman of a switching crew in defendant's railroad yard in that part of Kansas City, Missouri, known as the East Bottoms.

So far as this case is concerned, the railroad yard in question contains parallel tracks numbered consecutively from one to twenty-two both inclusive, all connected, by proper switch facilities, with a single track called the "lead track" or "North Yard lead track." This lead track ran practically east and west and the numbered tracks ran off from it in a general northwest direction at such an angle that cars or trains of cars could be brought along the lead track and pushed on to any particular switch track desired, or a train of cars could be taken off of any particular track and the individual cars composing such train could be distributed to the various parallel tracks desired according to where they were wanted or were intended to be when ready to be used or transported further. The work of distributing these cars to the different tracks was called "breaking up" trains. And, as stated before, plaintiff was foreman of defendant's switching crew engaged in this work.

From the switch of track No. 11, measured east along the lead track, to the switch of Track No. 1 was about fifteen car lengths or about 540 feet. Track No. 1 was the "repair track" on which cars were set which the inspector found were out of order. There they would be repaired by men engaged in that work. The particular track upon which a car should be put was designated in some way on the car. Those needing repairs and having to go upon track No. 1 or the "rep track" as it was called, were designated by a placard tacked thereon bearing the words in bold letters "Bad order." On this card in ordinary script was written the nature of the defect and of the repair to be made. It was the duty of the switchmen to place cars bearing these "bad order" cards upon the "rep track," but the writing thereon specifying the nature of the defect and of the repairs to be made was for the repair men and not for the switchmen, and the latter were not required as a part of their work to read this part of the card.

About 4:30 p. m. February 13, 1912, plaintiff and his crew were engaged in "breaking up" a train of cars standing on track No. 11. The engine backed from the lead track on to said track No. 11 and coupled on to the nearest end of the cars, (which in railroad parlance was the east end). Plaintiff uncoupled fifteen of the cars from the rest, (that is, he uncoupled the connection between the 15th and 16th cars). This left the engine attached to a string of fifteen cars ready to go out of track No. 11 on to the lead track where the fifteen cars could be distributed and set on the different tracks required.

The two cars at the west end of this string and farthest from the engine were flat cars loaded with long, heavy, piling or logs. These logs were too long to be loaded on one car, so they were placed on the two cars, making what is known as a twin-load, with the ends of the piles about the same distance from the ends of the cars. On these two flat cars was a "bad order" placard, and the switchmen were therefore required to place these two cars on track No. 1, the "rep track." To do so the entire string of fifteen cars had to be pulled out of track No. 11 on to the lead track and taken east thereon past the switch to track No. 1, and then after this switch had been opened the engine would back the string in upon track No. 1 where the two cars would be left.

After the string of fifteen cars had been uncoupled from the others as above stated, the engine started out with the fifteen cars upon the lead track on its way to track No. 1. It was plaintiff's duty, as soon as he had uncoupled the string and it had started, to ride on the string down the lead track till he reached the switch to track No. 1, and then drop off while the train was yet going east, and after it had fully passed the switch at track No. 1, to open said switch and give the signal to back in upon said track 1. Plaintiff sprang upon the journal or oil-box at what a layman would call the hub of one of the front wheels on the south side of the second of the two flat cars, (being the 14th from the engine) and, holding with his hands to one of the standards, (or upright wooden stakes at the side of the car, a number of which were alongside the car to prevent its load from rolling off to the side), rode in this position west on the lead track till he got in about five car lengths, or 180 feet, of the switch to track No. 1 when the fifteen cars and engine made a sudden, extraordinary, abrupt and unusually hard stop. Plaintiff's hand was clasping the upright standard just above the floor of the car, and the quick, hard stop, (made while the cars were going six miles an hour), caused the load of heavy piling to slide forward on the car for about two feet catching plaintiff's hand and arm between the piling and the standard and crushing those members of his body.

For this injury plaintiff brought this suit alleging negligence upon the part of defendant in several particulars the most important of which now are that defendant negligently permitted a train to come onto the lead track and move west thereon at the same time that the switch train was going east, without notifying plaintiff or the crew of that fact, in violation of a custom prevailing in the yard not to allow another train upon said lead track while the switch train was thereon or to permit such other train to come on to said track without informing plaintiff or his crew of that fact; and that defendant negligently failed to give such notice, thereby causing the string of cars on which plaintiff was riding to be brought to a sudden, violent, abrupt, and unusual stop in order to prevent a violent collision; and that in thus negligently and carelessly causing and permitting said string of cars to be brought to such a stop and making the load of piling to shift, plaintiff was, without any notice or warning, caught and injured, all through the negligence of defendant as aforesaid.

There was ample evidence to prove that a train did come upon the lead track and was going west at the time that the switch train was going east thereon; that the stop made was sudden, violent, abrupt, and unusual and was made in order to avoid a collision; that the sudden and violent stop caused the piling to slide forward and catch and crush plaintiff's arm; that no warning or notice of the fact that this other train was coming in on the lead track was given plaintiff or his crew; that the position taken by plaintiff on the flat car in riding down the track was the usual position taken by switchmen on a car in doing such work, and it was necessary and proper for him to ride on the train of cars down to the switch in order to perform his duties required at that point.

It seems that the reason the two flat cars were placarded "bad order" was because the inspector discovered that the load of piling thereon had shifted or slipped back (to the west) from where they were originally loaded. And on the placard was written "load shifted" as the specific trouble with the car. Defendant, therefore, insists that plaintiff cannot recover because he voluntarily rode on a car which he knew to be in "bad order" and thereby assumed the risk attending such act. In taking this position defendant relies upon the case of Hager v. Terminal Railroad Association, 207 Mo. 302, and claims that the principle there announced forbids plaintiff's recovery.

While the evidence in the case at bar tends to show that the writing on the placard specifying wherein the car was in bad order is for the repair men and not for the switchmen, and that the latter do not stop their work to see what the trouble is, but merely take the placard as notice to put the car on the "rep track;" and while it also tends to show that plaintiff did not know the load had shifted to the west when he got on the car and took hold of the standard yet the case may be considered, and perhaps should be considered, on the theory that the "Bad order" placard was a notice to him that the car was defective and was also a notice to him of its particular defect, since if h...