Jackson v. Missouri Pac. Ry. Co.

• Decision Date: 25 May 1891
• Citation: 16 S.W. 413,104 Mo. 448
• Parties: JACKSON v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

16 S.W. 413

104 Mo. 448

JACKSON v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

INJURY TO EMPLOYE.

The conductor of a freight train was ordered by the train dispatcher to take into his train some cars which were on a side track. He gave the numbers of the cars to his brakeman, and ordered him to get them out. The brakeman got on the brake-beam of the tender, and the engine was backed on the side track. The brakeman turned towards the engine, and gave a signal to back up, and, as he did so, the tender struck a flat-car, and he was caught between the tender and some iron rails, which extended over the end of the flat-car. It was a dark night. It was the custom of the company to carry cars loaded with timber and iron rails extending over the ends of the cars, and it was shown that rails and timbers loaded on cars would slip back and forth. The brakeman was experienced in yard work and on trains. Held, that there was no evidence of negligence either in leaving the car loaded as it was on the side track, or in failing to notify the brakeman that the car was there. BARCLAY, J., dissenting.

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

H. S. Priest and Adams & Buckner, for appellant. Jas T. Burney and R. T. Railey, for respondent.

BLACK, J.

The plaintiff is the widow of Frank L. Jackson. She prosecutes this suit to recover damages for the death of her husband, who died from injuries received while in the employ of the defendant as a brakeman. The evidence discloses the following facts: Jackson was an experienced brakeman in yards and on trains. He and his crew made their regular trips over the defendant's branch road from Pleasant Hill to Nevada, both points being in this state. On the occasion in question they left Pleasant Hill with their freight train about 1 o'clock, and reached Harrisonville about 2 o'clock A. M. At that place the conductor of the train received orders from the train dispatcher to take into his train some cars which were standing on what is called the "Mill Track," which was the third side-track south of the main track. The mill track was used for leaving thereon loaded cars, and also for storing empty cars. The record does not show what the duties of the train dispatcher were, but we infer he was simply a station agent at Harrisonville. The conductor gave the order which he received from the train dispatcher to his brakeman. Jackson uncoupled the engine and tender from the train then standing on the main track, got upon the engine, and under his directions the engine and tender moved forward to the switch which led to the mill track. He opened that switch, got upon the rear brake-beam of the tender, and directed the engineer to back in on that track. After passing some 10 car-lengths, he gave the engineer a signal with his lantern to back up. Jackson was then looking towards the engine. At that moment the tender struck a flat-car loaded with iron rails. Some of the rails projected over the car from 10 to 18 or more inches, so that Jackson was caught between the end of the rails and the tender, and received the injuries from which he died. The flat-car stood between the tender and the cars which were to be placed in the train. The presence of the flat-car was unknown to the conductor and to the engineer and to Jackson. It was a dark night, and it is evident Jackson did not see the flat-car until the tender ran against it. The evidence does not show when or how this car got on the track, nor does it appear that the train dispatcher knew that the rails projected over the car, or even that there was such a car on the track. The plaintiff introduced the conductor as a witness, and the defendant read in evidence the depositions of the engineer and two brakemen, which depositions had been taken and filed in the case by the plaintiff. The evidence of these witnesses tends to show that the rails had shifted; that is to say, had slipped over the end of the car. Their evidence shows, beyond all doubt, that it was a daily occurrence to find iron rails and timbers projecting over the cars upon which they were loaded; that the defendant and other railroads always receive cars thus loaded; that cars loaded with projecting rails and timbers were coupled and uncoupled and placed in trains at the yards at Pleasant Hill, where the deceased had been employed. The engineer says he found the iron extending over the flat-car 10 to 15 inches, but does not know how it was loaded; that the engine struck the car hard enough to have slipped the iron that distance. After the accident the conductor and others placed one end of a timber against the engine tank, and the other against the rails, and in that way pushed them back on the car. There is an averment in the petition to the effect that Jackson got on the...