Hudgens v. St. Louis & S. F. R. Co.

• Decision Date: 25 May 1909
• Citation: 119 S.W. 522,139 Mo. App. 44
• Court: Missouri Court of Appeals
• Parties: HUDGENS v. ST. LOUIS & S. F. R. CO.

119 S.W. 522

139 Mo. App. 44

HUDGENS v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

May 25, 1909.

1. RAILROADS (§ 275) — INJURIES TO PERSONS ON OR NEAR TRACKS — RIGHT TO GO ON TRACK — DRAYMEN.

A car load of freight shipped over defendant's road arrived at its destination at night, and was set out on defendant's house track at the usual place for unloading, and the conductor told the owner that the car was at the proper place for him to unload in the morning. The next morning the owner called at the defendant's depot near where the car was standing, but found no agent present, and, the car being under his private lock and key, he proceeded with the help of plaintiff, who was a drayman, to unload the same. While removing goods from the car, one of defendant's trains, without warning, was backed with great force against the car, and plaintiff was injured. Held, that plaintiff was not a mere licensee, but was on defendant's premises as by invitation and entitled to the exercise of ordinary care for his safety, whether or not defendant's agent had special knowledge of plaintiff's presence upon the car, and the backing of the train against the car without warning and without any lookout for his safety was a breach of defendant's obligation.

2. RAILROADS (§ 278) — INJURIES TO PERSONS ON OR NEAR TRACKS — DRAYMEN — CONTRIBUTORY NEGLIGENCE.

While a drayman was assisting the owner in unloading a car load of goods, defendant ran a train of cars against the car without warning, and plaintiff was injured. A bystander, seeing the cars approach, called to him, and plaintiff was attempting to step from the car when it was struck. Held, that plaintiff, being properly engaged in his duties in the car, had the right to rely on the performance of the duty imposed on defendant to protect him, and it was not negligence on his part not to look out for a danger which he had no reason to anticipate, and that his attempt to leave the car was not contributory negligence, although by reason of such attempt he was thrown to the ground and injured, as, at the instant of impending danger, he was not required to stop to determine upon the safest course to pursue, but was only bound to exercise that degree of care which an ordinarily prudent person would exercise under similar circumstances.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Thomas Hudgens against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

L. F. Parker, W. F. Evans, and Jas. Orchard, for appellant. B. J. Puckett, for respondent.

NORTONI, J.

This is a suit for personal injuries. Plaintiff recovered, and the defendant appeals.

The evidence tended to prove that an immigrant shipped a car load of his property to the city of Poplar Bluff, on defendant's railroad. In this car were his household goods, numerous boxes, and some live stock. The immigrant accompanied the shipment and had the car exclusively in his possession under his private lock and key. The car reached Poplar Bluff some time during the night and was set out by the train crew on defendant's house track at the usual place for unloading freight from cars. The conductor of the train which had transported the car instructed the proprietor of the goods therein that the car was set at the proper place for him to proceed to unload it in the morning. The following morning the proprietor called at the defendant's depot, which was immediately adjacent to where the car was standing, to interview the defendant's agent about the matter. Not finding the agent present, and the car being in his possession, under his private lock and key, he proceeded at once to unload the same; that is, he first removed therefrom his live stock, and afterwards a buggy, which buggy he set up on the depot platform. Thereupon he employed the plaintiff, who is a drayman, to assist him in further removing the goods. Plaintiff backed his wagon near to the car door, as is usual in such cases, and he and the proprietor proceeded to load the same. After having the wagon about loaded with numerous articles of household furniture and some boxes, one of the defendant's trains, without any warning whatever, backed with great force against the car, just as plaintiff was in the act of stepping therefrom to his wagon. The jar of the collision was such that it almost overturned the plaintiff's wagon and precipitated him to the ground beneath, thus inflicting his injuries.

The case was tried before a jury. Instructions were given for either party, but no complaint is lodged here against the same. There are two assignments only advanced for a reversal of the judgment. The first relates to the liability of defendant company under the facts in proof; that is to say, the defendant argues that the facts proved fail to disclose a situation in which obtained the obligation of ordinary care for the plaintiff's safety. Second, that the proof shows plaintiff was so culpably negligent as to preclude his right of recovery. We are not impressed with either of these arguments. It is said that as the proof fails to show that defendant's station agent had knowledge that plaintiff or his employer, the immigrant, were then engaged in unloading the car, it was not incumbent upon the plaintiff to exercise ordinary care in switching its trains thereabout. In view of the fact that defendant did not have actual notice that the parties were engaged in unloading the car, this argument would be sound, we believe, if the injury occurred merely in the railroad yards; that is, at a point other than that usually occupied by shippers for the purpose here involved. This would proceed upon the theory that no...