Hurst v. Kansas City, Pittsburg & Gulf Railroad Company
| Decision Date | 11 June 1901 |
| Citation | 63 S.W. 695,163 Mo. 309 |
| Parties | HURST v. KANSAS CITY, PITTSBURG & GULF RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.
Reversed.
Lathrop Morrow, Fox & Moore for appellant.
(1) Upon the entire record there was no evidence to support a judgment for the plaintiff. Halloran v. Iron & Foundry Co., 133 Mo. 478; Bradley v. Railroad, 138 Mo 302; Armour v. Hahn, 111 U.S. 318; Rosenbaum v Railroad, 36 N.W. 447; Bennett v. Railroad Co., 44 N.Y.S. 258; Brick v. Railroad, 98 N.Y. 211; Hathaway v. Railroad, 29 F. 489; Railroad v. Ross, 17 Am. and Eng. R. R. Cas. (N. S.), 432; Kerrigan v. Railroad, 16 Am. and Eng. R. R. Cas. (N. S.), 835; Williams v. Railroad, 119 Mo. 316; Batterson v. Railroad, 18 N.W. 564; Ragon v. Railroad, 56 N.W. 612; Finnell v. Railroad, 29 N.E. 825; Moore v. Railroad, 146 Mo. 572; Clark v. Railroad, 48 Kan. 654. (2) The court erred in permitting plaintiff's witnesses to testify as to what should be the proper condition of the ground in a switch yard in order to be in a reasonably safe condition. Benjamin v. Railroad, 133 Mo. 288; Lee v. Knapp, 56 S.W. 458; Goble v. Kansas City, 148 Mo. 470; Dammann v. St. Louis, 152 Mo. 186; Gutridge v. Railroad, 94 Mo. 468; Brown v. Plank Road Co., 89 Mo. 152; Eubank v. City of Edina, 88 Mo. 650; Koons v. Railroad, 65 Mo. 592; King v. Railroad, 98 Mo. 235; Gavisk v. Railroad, 49 Mo. 274; Madden v. Railroad, 50 Mo.App. 666; Hoffman v. Railroad, 51 Mo.App. 273; Atchison v. Henry, 57 Kan. 154; Railroad v. Moddsitt, 124 Ind. 212; Railroad v. Mitchell, 124 Ind. 473; Railroad v. Clouch, 2 Kan.App. 728; Graham v. Railroad, 139 Pa. St. 161; Bergen v. County Traction Co., 41 A. 837. (3) Plaintiff was guilty of contributory negligence, in endeavoring to climb upon a train running from six to eight miles per hour, under the circumstances of this case. Dowell v. Railroad, 61 Miss. 519; Timmons v. Railroad, 6 Ohio St. 105; Chambers v. Railroad, 91 N.C. 471; Roul v. Railroad, 85 Ga. 197.
Kinley & Kinley with Charles C. Hammond for respondent.
(1) One of the duties the employer owes to the employee is to furnish a reasonably safe place for the latter to perform his labors; a failure in this respect is negligence. In determining whether this duty has been performed, the character of the work, the situation of the parties and all the surroundings should be taken into consideration; such duty is continuous and under no circumstances ceases. Huhn v. Railroad, 92 Mo. 443; Tabler v. Railroad, 93 Mo. 79; Flynn v. Railroad, 78 Mo. 195; Dale v. Railroad, 63 Mo. 455; Lewis v. Railroad, 59 Mo. 495; Bowen v. Railroad, 95 Mo. 268; Patterson v. Railroad, 76 Pa. St. 389. (2) If the yards at Stilwell, where the injury occurred, were unsafe to work in and plaintiff was injured thereby, he is entitled to recover, notwithstanding he knew or should have known of such unsafe condition of said yards, provided it was not so dangerous as to threaten immediate injury, or if plaintiff might have reasonably supposed he could work in said yards by the use of care and caution, and that in such work he did use the care and caution incident to the situation in which he was placed. This is the rule declared in plaintiff's fourth instruction. Dale v. Railroad, 63 Mo. 455; Waldheir v. Railroad, 87 Mo. 37; Huhn v. Railroad, 92 Mo. 440; Stephens v. Railroad, 96 Mo. 207; Soeder v. Railroad, 100 Mo. 673; Mahoney v. Railroad, 108 Mo. 201; O'Mellia v. Railroad, 115 Mo. 218; Bender v. Railroad, 137 Mo. 245; Madden v. Railroad, 32 Minn. 303; Patterson v. Railroad, 76 Pa. St. 393; Flynn v. Railroad, 78 Mo. 195; Lewis v. Railroad, 59 Mo. 495; Hawley v. Railroad, 82 N.Y. 370; Williams v. Railroad, 109 Mo. 475; Hamilton v. Rich Hill Min. Co., 108 Mo. 376; Ashland Coal Co. v. Wallace, 42 S.W. 744; Sims v. Lindsay, 30 S.E. 19. (3) The defendant's road was not in process of construction, nor was the plaintiff engaged with a train that had anything to do with the construction of the yards or road improvements. When the defendant opened its line to earn money by operating it, it owed to its operating employees the same duty that attaches to any other similar employer, one of which was to have its ground and tracks in the yards for the division point in a reasonably safe condition. Railroad v. Morrisey, 177 Ills. 376; s. c., 12 Am. & Eng. R. R. Cas. (N. S.), 624; Goodrich v. Railroad, 152 Mo. 228. (4) The correct method of preparing and constructing switch yards, and the condition in which they should be, to be in a reasonably safe condition for use by the employees of such road engaged in switching, are not matters of such nature that they might be presumed to be within the common experience of all men of common education, moving in the ordinary walks of life, but the same are in a peculiar line of work and knowledge, not understood or open to the general public, hence, the expert testimony concerning the same was proper. Johnson v. Railroad, 96 Mo. 340; Ellsner v. Sup. Lodge, 98 Mo. 640; State v. Patrick, 107 Mo. 174; Turner v. Haar, 114 Mo. 335; Boeltger v. Scherfer, 124 Mo. 187; Cook v. Railroad, 57 Mo.App. 471; Crouse v. Railroad, 102 Wis. 204. (a) It was admitted by defendant's witnesses that the grounds in the switch yard, where the injury was received, were not in a safe condition, and the statement as to what condition the ground should be in to be reasonably safe for switchmen in the discharge of their duties, was not error, or if error, not reversible error. Benjamin v. Railroad, 133 Mo. 274; King v. Railroad, 98 Mo. 235; Railroad v. Davidson, 76 F. 521; Western Coal Mine Co. v. Berberick, 94 F. 333. (b) The questions asked the expert witnesses were proper as they were only presenting to the jury by experienced witnesses, the collective facts on that branch of the case. Smith v. Railroad, 151 Mo. 397; Littlejohn v. Shaw, 159 N.Y. 193; Daly v. Milwaukee, 79 N.W. 752; Cooper v. Railroad, 44 Iowa 140; Sears v. Railroad, 14 Gray (Mass.), 466; Snowden v. Idaho Min. Co., 55 Cal. 450; Ardesco Oil Co. v. Gilson, 63 Pa. St. 146; Moreland v. Mitchell, 40 Iowa 401; Ogden v. Parsons, 64 U.S. 167; Helferstein v. Railroad, 136 Mo. 595; Chamberlain v. Dunlop, 54 Hun 639; Woodstock, Irvin Co. v. Roberts, 87 Ala. 436; Railroad v. Watson, 90 Ala. 68; Miller v. Railroad, 89 Iowa 567; Lima v. Tyngsborough, 63 Mass. 36; Railroad v. Richart, 27 S.W. 918; Greenwell v. Crow, 73 Mo. 638; Ills. Riv. Packet Co. v. Peoria Bridge Co., 38 Ills. 467; Cross v. Railroad, 69 Mich. 363. (c) Even if appellant is correct in the position that the questions asked the expert witnesses on the trial of the cause, were not proper because the questions called on the witness to determine facts within the province of the jury, no such objection was made to the admission of the testimony in the lower court, and appellant should not be permitted to raise it in this court for the first time. Nall v. Railroad, 97 Mo. 68; Dunkman v. Railroad, 95 Mo. 232; Russell v. Glasser, 93 Mo. 353; Walker v. Hoeffner, 54 Mo.App. 554; Winston State Bank v. Harris, 54 Mo.App. 156. (5) Defendant's rules practically required trainmen in the yards to get on trains while in motion, however, forbidding them "to board engines or cars while they are in too rapid motion." Also another rule is, "In all cases of doubt and uncertainty take the safe course and run no risks." These rules were pleaded and read in evidence. Under this state of case the inquiry of expert trainmen as to what rate of speed should cars be moving in the yard to make it reasonably safe for an experienced brakeman to get on train, was manifestly proper. Hollenbeck v. Railroad, 141 Mo. 97. (a) Also, plaintiff, as shown by the evidence of the conductor of defendant, was, in his work in the yards, required to get on the train while in motion. Under this evidence the inquiry, as to what rate of speed should a train in the yards be moving for it to be safe for experienced brakeman to get on caboose, was proper. (b) This evidence was also relevant and material in view of the defense of contributory negligence, in determining whether or not plaintiff was guilty of contributory negligence in attempting to board the caboose while in motion. In some instances attempting to board a train while in rapid motion is negligence, but to step on or from a car while in slow motion, may or may not be negligence, owing to the peculiar circumstances of the case, and the question is then one for the jury. Tabler v. Railroad, 92 Mo. 79; Leslie v. Railroad, 88 Mo. 50. (6) The plaintiff did not have control of the train or locomotive and caboose at the time of his injury; they were being moved by the signalling and direction of the head brakeman. Plaintiff's signal was only to head brakeman "all right," meaning the work there was done, and the head brakeman signalled the engineer to back up, and under the rules of defendant, plaintiff was required to get on the caboose while in motion, provided it was not moving at a too rapid rate.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant, in whose service he was at the time of the injury, to furnish him a safe place to work. The trial resulted in a verdict, and judgment for plaintiff in the sum of four thousand seven hundred and fifty dollars, from which defendant appeals.
The facts, briefly stated, are that at the time of the accident plaintiff was in the service of defendant as rear brakeman on one of defendant's freight trains, running regularly between Mena, Arkansas, and Stilwell, Indian Territory, a divisional point, where there were a number of tracks for...
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