Jenkins v. Wabash Ry. Co.

• Decision Date: 03 May 1937
• Parties: JAMES M. JENKINS, ADMINISTRATOR OF THE ESTATE OF WILBUR F. JENKINS, DECEASED, RESPONDENT, v. WABASH RAILWAY COMPANY, APPELLANT
• Court: Kansas Court of Appeals

107 S.W.2d 204

232 Mo.App. 438

JAMES M. JENKINS, ADMINISTRATOR OF THE ESTATE OF WILBUR F. JENKINS, DECEASED, RESPONDENT, v. WABASH RAILWAY COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

May 3, 1937

[Copyrighted Material Omitted]

Appeal from the Circuit Court of Livingston County.--Hon. Ira D Beals, Judge.

AFFIRMED.

Judgment affirmed.

Davis & Davis, Dean H. Leopard, Prince & Beery, Hume & Raymond for respondent.

S. J. Jones, Paul D. Kitt, Randall R. Kitt and Homer Hall for appellant.

OPINION

REYNOLDS, J.

--1.--The plaintiff, administrator of the estate of Wilbur F. Jenkins, deceased, brought this suit under the Federal Employers' Liability Act, seeking to recover damages for the death of the said Wilbur F. Jenkins. The suit was instituted in the circuit court of Daviess county, against the Wabash Railway Company, a corporation, and Arthur Lovell, one of its section foremen, as defendants, on petition filed December 30, 1929. The suit was thereafter transferred by change of venue to the circuit court of Livingston county, where it was tried on January 21, 1931, before the regular judge thereof and a jury, resulting in the discharge of the defendant Lovell and a judgment against the defendant Wabash Railway Company in the sum of $ 9,000. From that judgment, the defendant appealed to the Supreme Court of Missouri, which court reversed the judgment and remanded the cause on account of errors not necessary here to state. [Jenkins v. Wabash R. Co., 335 Mo. 748, 73 S.W.2d 1002.]

The case was retried upon such remand at the April term, 1935, of the circuit court of Livingston County before the court and a jury, resulting in a judgment for the plaintiff in the sum of $ 7,500. From said judgment, after unsuccessful motions for new trial and in arrest of judgment, the defendant prosecutes this appeal.

Upon its appeal to the Supreme Court, the defendant filed a bill of exceptions, in which was preserved the evidence of the plaintiff's witnesses, G. H. Harrington and Lester Atherton, given on the first trial. On the trial resulting in the judgment from which the appeal under consideration herein was had, the evidence of both such witnesses was introduced and read from the said bill of exceptions. The evidence of such witnesses was the only evidence introduced in the cause by the plaintiff upon which he relied to establish the negligence of the defendant.

The Supreme Court, in its opinion, stated (l. c. 1006, 1007 of 73 S.W.2d the essential controlling facts, as follows:

"It appears from the record that the accident occurred at a switch east of Wakenda, in Carroll county, Mo. Appellant's main line ran east and west through Wakenda. North of this main line and east of the station was a passing track. This was over a quarter of a mile in length, and lay parallel with the main track, except where it connected by switch with the main line at each end. There was a curve in the main line as the switch at the east end of this passing track was approached from the west. At the east end of the passing track was a standard switch and switch stand. This consisted of a target, which was a piece of metal 30 or 32 inches long and 8 inches wide. If the target was pointed east and west, or parallel with the main line track, it meant there was no danger on that track; but if the target was pointed north and south it meant there was danger on the main line. This target was located on a switch stand 8 or 10 feet high. When the target was turned crosswise with the main line, indicating danger, it could be seen for one-half mile to the west. The switch points could be seen four or five hundred feet.

"On the day of the accident deceased was performing his regular duties as a section hand, working on the main line in and around Wakenda. About 11:10 a. m. he and other members of the crew were ordered by foreman Lovell to board the motorcar, provided them by appellant, and go with him to a work train on the main line about a quarter of a mile east of the switch at the east end of the passing track for the purpose of loading ties and unloading some other materials. Defendant Lovell, who was appellant's section foreman in charge of this crew, gave these orders and boarded the motorcar with his men. Three of the section crew sat on the north side of the car facing north. Deceased was one of this number, and sat farthest east. Two more of the crew sat on the south side of the car facing south, while foreman Lovell sat at the southwest corner of the car operating it, and facing east, or the direction in which the motorcar was going.

"Immediately prior to this movement deceased and other members of the section crew had been working on appellant's main line west of the depot at Wakenda. The curve in the track east of the depot, together with the depot building, prevented them from seeing the switch before they started on the journey which resulted in the accident. There was a flagman from the work train near the station at Wakenda which was about one-half mile west of the switch. Upon the orders of their foreman the crew loaded their car on the south passing track west of the station. They found the switch closed for this passing track and open for the main track. In order to get on the main track the crew lifted the car and set it over on the main track.

"As trains approached on the main track that morning the work train was moved onto this north passing track and out again to work on the main track when it was cleared. About fifteen minutes before the motorcar bearing the section crew reached this switch, appellant's conductor in charge of the work train opened the switch to allow the work train to move from the passing track to the main track after a train had just passed on the main track. After this movement was accomplished he left the switch open for the passing track and closed for the main track, with the switch target pointing crosswise with the main track. He then proceeded east on the main track with the work train, and was about 1,200 feet east of the switch stand when the motorcar reached it. No employee was left in charge of the switch, and this conductor did not learn of the derailment until he went to Wakenda at noon. In this connection defendant railway company's published rule No. 104 was offered and received in evidence, which rule is as follows:

"'Switches must be left in proper position after having been used. Conductors are responsible for the position of the switches used by them and their trainmen, except where switch tenders are stationed, but, when practicable, the engineman must see that the switches nearest the engine are properly set.

"'A switch must not be left open for a following train unless in charge of a trainman of such train.'"

. . . .

"As the motorcar proceeded eastward toward the work train it was going full speed. There was nothing to obstruct the view of the section foreman and his crew as they approached this switch. The work train was unloading ballast, and slowly moving westward toward the approaching motorcar. Witness Atherton, a member of the section crew riding on the motorcar, testified that he did not see the switch target as they approached, and was not aware that the switch was turned against them. He stated that if any of the crew had seen that the switch was open the motorcar would have been stopped and lifted around the switch. He said: 'We was looking at the work train, and we run off of the open switch about 33 feet.' The motorcar could have been stopped in about half a rail length, or approximately 16 feet.

"After the motorcar left the track, it bumped along over the ties and threw all the men off, except the foreman. Deceased was thrown down between the tracks and seriously injured. Members of the crew carried him to a car in which he was taken to Wakenda. His condition became worse, and he was taken to a hospital, where he died in the early afternoon of the same day."

The record before us is in harmony with the foregoing statement of facts.

The Supreme Court, in ruling the case, (l. c. 1008, 1009 of 73 S.W.2d) said:

"A careful study of the record in this case fails to disclose any evidence whatever that decedent actually knew that the switch was open. Neither can we say as a matter of law, in the light of the federal rule on assumption of risk, that he appreciated the danger, or that it was so plainly observable that he must be presumed to have known it. The railway company's rule 104 contained the following requirement 'A switch must not be left open for a following train unless in charge of a trainman of such train.' The conductor of the work train testified that earlier that morning he had left a flagman at the station about a half mile west of this switch to protect his crew from trains coming from that direction. The evidence is far from conclusive that decedent either saw him or knew of his presence there. Moreover, this flagman was obviously not in charge of this switch, because the evidence shows that it was being operated by the conductor of the work train, and there was no evidence that the flagman at the station even knew that this switch was open when some of the crew observed him approaching them from the east as they started for the work train from their place of work west of the depot. He was then a half mile or more west of the switch in question and was apparently in charge of the switches leading from the main track to the south passing track. If, as counsel for appellant contend, the decedent by reason of his long service there was familiar with the location of the switches and the rules and customs governing their operation and care, absence of a trainman in charge of the switch at the east end of the north passing track together...