Jackson v. Missouri Pac. Ry. Co.

• Citation: 14 S.W. 54
• Parties: JACKSON v. MISSOURI PAC. RY. CO.
• Decision Date: 16 June 1890
• Court: United States State Supreme Court of Missouri

14 S.W. 54

JACKSON v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 16, 1890.

MASTER AND SERVANT — FELLOW-SERVANTS.

In an action against a railroad company for a wrongful death, the evidence showed that deceased was a brakeman on defendant's freight train; that he opened a switch to allow the engine to go on a side track to take out some box-cars; that he then got on the brake-beam of the tender, and the engine backed on down towards the cars, which were about 700 feet down the track, and could be seen from the engine by the gleam of lamps at the depot; that when about midway the tender struck a flat-car loaded with rails, which projected some distance over the end of the car, so that they caught deceased between them and the tender, causing his death. The flat-car, on account of its height, could not be seen from the tender in moving towards it, and deceased did not know it was on the track. Held, that defendant was not liable for the accident, since it was attributable either to the negligence of co-employes or the ordinary risks of the service. BARCLAY, J., dissenting.

Appeal from circuit court, Bates county; JAMES B. GANTT, Judge.

Thos. J. Portis and Robert Adams, for appellant. Railey & Burney, for respondent.

BARCLAY, J.

This is a statutory action by the widow of Frank L. Jackson for damages on account of his death, resulting from defendant's alleged negligence. The defense denied the negligence, and asserted contributory negligence on the part of deceased. The plaintiff's evidence tended to show that her husband was a brakeman on a freight train of defendant under charge of Conductor Reed. At Harrisonville, Mo., the train dispatcher gave Reed orders to bring out, into his train, one or more box freight-cars standing on a side track, which he proceeded to do with his train crew. It was about 3 o'clock A. M., and very dark. Jackson opened the switch to admit the engine to the side track, and got on the brake-beam of the tender. The engine then backed along the side track to get the cars desired, which could be seen from the engine by the gleam of lamps at the depot crossing. The box-cars were some 600 or 700 feet down the side track. In moving towards them, and about midway, the tender struck a standing flat-car loaded with iron rails, which was not observable from the engine, owing to the darkness. Jackson was injured by being caught between the tender and the rails on the flat-car, which projected some 18 inches or 2 feet over the end of the car. The injuries he thus received were fatal. This flat-car was on the track when deceased came into the depot yard; but Jackson was not aware, nor was he informed by any one, of that. The injury would not have happened but for the position of the rails on the flat-car, which projected so far over the end as to occasion the danger. The flat-car was taken out of the way after the injury to deceased, and the evidence describing its condition then was this: "Question. Now, I understood you to tell Capt. Adams that when you went, finally, to couple onto that flat-car, and take it out, that you experienced some difficulty in doing so? Answer. Yes, sir. Q. Explain to the jury why that was, and how. A. The iron projected so far over that the draw-head on the engine and the car did not come together by that much, [indicating.] Q. Give me the number of inches. A. Say a foot. Q. By reason of the iron rails projecting over the car, the two draw-heads were not permitted to come together by a foot? A. Somewhere in that neighborhood. It might have been five or six inches. At least, we could not couple onto it, and it could not have been more than a foot. Q. How did you finally couple on? A. By using a stick of timber. We got a stick of timber, and placed it against the tank, then put it against the iron, and shifted the iron back on the car. Q. Did you observe at that time how many rails were projecting over? A. Quite a number. I could not say. Q. If you can, state about the number of inches that those rails were projecting over the end of the car at the time you went there to couple onto it. A. * * * Two feet. Some of them were projecting further than others." The other evidence need not be detailed. There was no great dispute about the material facts of the case, and the formal proofs were admitted, as indicated in plaintiff's first instruction.

The court then gave the following instructions, viz.: For plaintiff: "(1) It is admitted by the pleadings in this case that, at the time mentioned in plaintiff's petition, the defendant was a railroad corporation operating its road from Pleasant Hill, through Harrisonville, in Cass county, Mo., and that, for the purpose of carrying on its business, said defendant had erected a depot, and had laid out side tracks, switches, and other tracks at said city of Harrisonville. (2) It was the duty of defendant, in prosecuting its business, and in the loading and side-tracking of cars, to use and exercise care, skill, and caution to protect the lives and persons of its employes; and the degree of care must be proportionate to the dangerous nature of the means, instruments, and machinery used. (3) If the jury believe from the evidence that plaintiff, by contract with defendant, entered into its employ, as a brakeman on said railroad, to do and perform such work as was required of him as such employe, then the law presumes that, in accepting such work, he only assumed the ordinary risk or danger of such employment, and did not assume, or contract with reference to, any risk or danger arising or resulting from an unsafe and dangerously loaded car left standing upon its side track, unless plaintiff knew that such cars were left standing in that condition on said side track, and the increased dauger arising from their being left in such condition, or, by the exercies of ordinary care and prudence on his part, could have known of same. (4) It is the duty of defendant to exercise reasonable care in seeing that cars upon its switches and side tracks are not left in an unsafe or dangerous condition for brakemen who are required to couple and uncouple such cars; and whoever is required by defendant to...