Hubbard v. Wabash R. Co.

• Decision Date: 12 March 1917
• Docket Number: No. 18314.,18314.
• Parties: HUBBARD v. WABASH R. CO. et al.
• Court: Missouri Supreme Court

193 S.W. 579

HUBBARD v. WABASH R. CO. et al.

No. 18314.

Supreme Court of Missouri. Division No. 1.

March 12, 1917.

Motion for Rehearing Denied March 30, 1917.

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

Action by Joseph E. Hubbard against the Wabash Railroad Company and others. Judgment for the plaintiff, and defendants appeal. Affirmed.

This is a suit to recover damages for personal injuries received by the plaintiff through the alleged negligence of the defendants. The verdict and judgment were for the plaintiff in the sum of $15,000, and the defendants appealed to this court.

The evidence for the plaintiff tended to show the following facts:

That the defendants were the receivers of a railroad corporation doing business in this state, transporting freight and passengers for hire. The Shaw Crusher Company was a corporation engaged in quarrying, crushing, storing, shipping, transporting, and selling crushed rock and the by-products thereof. That the plaintiff was an employé of the crusher company. The quarry of the crusher company was located along the line of the railroad company, about 4 miles north of Gallatin, Mo., and the crusher was constructed and located upon the right of way of the railroad company, for the accommodation of which the latter had constructed side tracks and switches.

The main line of the railroad runs generally north and south, and some distance north of the plant it passes through a cut or draw on a double curve, which obstructs the view of the train until it approaches within ____ hundred feet of the crusher. The crusher is located east of the main track, and is erected on posts or pillars of sufficient height to permit a freight car to be set beneath it for the purpose of receiving, by means of gravity, the stone as it is crushed. The crusher structure is about 40 feet in length north and south, and 25 feet wide east and west. The crusher proper is two stories high, with the machinery above. The west wall of the crusher is located 5 feet and 7 inches from the east rail of the main track. Prior to the date of the accident there had been constructed along the east side of the main track a spur or side track, which connected with the main track by means of a switch at a point about 1,100 feet north of the crusher, and extended south and parallel to the main track through the crusher plant to a point several hundred feet south of the crusher. The distance between the east rail of the main track and the west rail of this switch track is 10 feet 4 inches. East of the switch track just mentioned there had been constructed a second switch track, which connected with the first switch track by means of a switch located about 120 feet north of the crusher and extended thence parallel to and east of the first switch track and beneath the crusher structure to a point approximately 200 feet south of the crusher, where it again connected with the switch track first mentioned.

The engine room structure "cornered" the southeast corner of the crusher structure. This engine room extends south from the southeast corner of the crusher structure a distance of approximately 40 feet. It has a width of about 20 feet, and the west wall of the engine room is a continuation to the south of the east wall of the crusher. Across the railroad tracks and southwest from the crusher plant, the crusher company had constructed its toolhouse, consisting of a frame structure approximately 12 feet by 10 feet. South of the toolhouse, and a little to the west thereof, the crusher company had constructed a commissary or store building, also a building used as a boarding house. The door of the engine room is located in the west wall near the south end, and from the engine room door the crusher company had, prior to the accident, made a cinder path across the two switch tracks and the main track to the toolhouse, also a cinder path west of the main track leading from the toolhouse to the commissary and boarding house.

The following plat fairly presents the physical conditions of the things as they existed there at the time of the injury.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff was walking on the cinder path leading from the engine room door to the toolhouse, and was struck by defendants' southbound train just as he approached the east rail of defendants' main track. This path crosses the east rail of the main track at a point about 47 feet south of the south wall of the crusher, and at a distance of approximately 36 feet from the door of the engine room. The toolhouse is located about 18 feet west of the west rail of defendants' main track, and approximately 58 feet southwesterly from the door of the engine room. In transacting said business, rock is placed in the crusher and crushed into small particles, and then emptied into cars which stand on the tracks and right of way of the defendants, which are afterwards hauled by the defendants over said railroad to points where said crushed rock is sold and delivered to purchasers.

There was a contract between the defendants and the crusher company and its predecessors that the Wabash Railroad and the defendants should furnish space on said right of way of said railroad at the point where said crusher is located on which might be constructed all proper buildings, equipment, and machinery for transacting said business; and it was further provided by said contract that the defendants should furnish adequate facilities and grounds for the construction and location of said equipment, buildings, and appurtenances for the transaction of said business. These structures and conditions had existed there for years prior to the date of the injury. In transacting said business, it was necessary for the employés of the crusher company to pass and repass over and across the main line, side tracks, and switch tracks of the defendant at the point where said crusher is located, and to walk across said railroad tracks from one building to the other located on the right of way of the defendants at said point, all of which the defendants then and there knew and might have known by the exercise of reasonable care. Usually, customarily and habitually, all employés of the Shaw Crusher Company and its predecessors crossed the main line and side tracks and switch tracks of the defendants, in the neighborhood and vicinity of said crusher plant, in and about doing their work; and at all times herein mentioned, there were footpaths worn across and along said tracks, and, as was well known to the defendants, said footpaths were necessarily used by said employés in going to and from their work, and in performing their duties in connection with said crusher plant.

The usual and ordinary operation of said crusher makes so much noise as to prevent one engaged in his work at said place to hear the ordinary running of a train, unless warned of its approach by the bell or whistle, all of which the defendants knew, or which they might have known by the exercise of ordinary and reasonable care.

On May 2, 1913, while the plaintiff was passing from the engine house of said crusher plant to the toolhouse thereof, and while he was walking along and across the main line of railroad track, and while said crusher was making a loud noise in its usual operation, and while the air in that vicinity was full of rock dust and smoke, an engine and cars passed over defendants' said track at a high rate of speed without giving any signal by bell or whistle, and while the plaintiff was in the exercise of ordinary care, and while he was engaged in the performance of his duties as such employé, he was struck and injured by the engine of said train.

The train which struck the plaintiff approached the crusher plant from the north. The main track on which the train was running is straight for a distance of 400 feet north of the crusher; it then curves to the northeast on approximately a five-degree curve for a distance of 750 feet, and then curves to the northwest for a distance of 1,000 feet. The train running south approached the crusher around this reverse curve.

Plaintiff was injured at about 5:45 p. m. He had been working about the crusher and engine room throughout the day. He had completed his work, and as it was near quitting time, he started from the door of the engine room along the cinder path to the toolhouse for the purpose of putting his tools therein. The crusher plant had been in operation off and on throughout the day, with the wind blowing over the main track, so that the dust, together with the smoke from the engine room, obscured plaintiff's view of the approaching train. The evidence also shows that at the time of the accident, a partially loaded car was standing on the first switch track east of the main track. The north half of this car was under the crusher, and the south half stood south of the crusher, so that the south end of the car was about 26 feet north of the cinder path. Plaintiff was walking along the cinder path from the door of the engine room, crossed the first switch track, then proceeded across the second switch track to within a distance of 4 or 5 feet of the east rail of the main track, where he "halted" and looked north, and neither saw nor heard the approaching train. He then continued toward the main track looking south all of the time for an approaching train from that direction and was struck by the south-bound train just as he was in the act of stepping upon the main track. His body was carried to the south and east a distance variously estimated from 40 to 50 feet. He testified: That when he looked north he could not see very far, probably not more than 40 feet. That he then looked south, and proceeded onto the main track without again looking to the north. That the reason plaintiff did not see the approaching train after it reached a point about 600 feet north of the crusher was because of the rock dust and smoke...