Jennings v. Mississippi River & B. T. Ry.

• Decision Date: 06 June 1922
• Docket Number: No. 17204.,17204.
• Citation: 243 S.W. 207
• Parties: JENNINGS v. MISSISSIPPI RIVER & B. T. RY.
• Court: Missouri Court of Appeals

243 S.W. 207

JENNINGS v. MISSISSIPPI RIVER & B. T. RY.

No. 17204.

St. Louis Court of Appeals, Missouri.

June 6, 1922.

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Elvy E. Jennings against the Mississippi River & Bonne Terre Railway. From a judgment for plaintiff, defendant appeals. Reversed.

Politte Elvins, of Bonne Terre, for appellant.

Charles M. Hay and J. A. Marsalek, both of St. Louis, for respondent.

BIGGS, C.

This suit on behalf of plaintiff for personal injuries, alleged to have been caused by the negligence of the defendant, resulted in a verdict and judgment for plaintiff for the sum of $5,000, from which the defendant appeals, claiming in the main that its demurrer to the evidence should have been sustained; one of the grounds for its contention being that the evidence convicted plaintiff of contributory negligence as a matter of law.

Plaintiff, a man 26 years of age, was a section hand in the employ of defendant working in and about Bonne Terre, Mo. At the time of his injuries he had been working for the defendant for about one week, but had worked as a section hand for the defendant on another occasion at a different place for some two years. Opposite the Bonne Terre station, and where the plaintiff was injured defendant maintains a toolhouse, where the section crew, of which the plaintiff was a member, kept their tools. Between this toolhouse and the station there are three tracks, known as the main track, the old main track, and the caboose track. About 125 feet north of the toolhouse is a railroad crossing for pedestrians and vehicles. Bonne Terre is a division point. For a long period of time defendant used the so-called caboose track for the purpose of storing cabooses at night. As the freight trains arrived at Bonne Terre from the south the cabooses would be disconnected from the main train south of the station, and then switched onto the caboose track and allowed to run by their own momentum onto this track. In doing so they passed the toolhouse referred to, which was 11 feet east of the east rail of the caboose track.

At about 5 o'clock on the day of the accident the section hand crew, including plaintiff, finished their work and deposited their tools in the toolhouse. They then left the toolhouse and some of them, as was customary, crossed the tracks to the station, which, however, was not a regular crossing place, but it had been their habit to so cross for a long period of time. Plaintiff knew that this track was used for the purpose of storing cabooses from freight trains and was familiar with the time that the trains arrived and departed from the Bonne Terre station. A freight train was due to arrive from the south at about 5 o'clock, but it was frequently late, and there was no definite time that it usually arrived at that station. Plaintiff had observed that the cabooses had been placed moon this track on another occasion, and knew the purposes for which the track was used. On the day in question, plaintiff, having deposited his tools in the toolhouse, left the door thereof, which, as stated, was 11 feet distant east from the east rail of the caboose track, and started due west across the tracks to the railroad station. He walked from the toolhouse to the caboose track, stepped upon the track, and was struck by a caboose which was running northwardly on this track under its own momentum; there being a grade at the point. The caboose was in charge of the freight' conductor, who was standing on the front platform, and who gave a cry of warning to plaintiff. It appeared that the plaintiff was slightly deaf in his left ear, which was unknown to the defendant.

As to plaintiff's conduct on the occasion, we quote from his testimony as follows:

"Q. Now, as you started out of the toolhouse to go home, which direction did you start to go? A. Well, I started toeing the depot. We went the same way all the time. As I started out the door, as well as I can remember, there was an engine coming up along by the depot somewhere. It was headed up the hill (or towards the south). As well as I can remember, I didn't see but one engine, somewhere along by the station and the toolhouse. As well as I can remember, it was headed going from the depot, leaving the yards. I wouldn't be sure which way it was going.

"Q. Did you see any train, engine, or cars of any kind coming from the other direction; that is, down from the south? A. No, sir.

"Q. What was the first you knew of a caboose or anything else coming from the other direction? A. You mean what drew my attention?

"Q. Yes. A. Well, I didn't know there was any caboose coming.

"Q. When did you first learn there was any caboose there? Did you know anything about it before you were hit? A. No, sir.

"Q. Did you hear any sound or any signal of any kind given before you were hit? A. No, sir."

On cross-examination plaintiff testifies:

"Q. You knew that was the caboose track there, where they dropped the cabooses down to keep them overnight; you knew that? A. Well, there was one track there I knew was the caboose track.

"Q. You have seen them let that caboose down there? A. That is the first time they let it down there when I was working there, that I seen.

"Q. Well, did you ever see them let it down there when you were not working there? A. I believe I seen it once. * * *

"Q. When you came out the door, which way were you looking? A. I was looking facing the depot.

"Q. Did you look up at all towards the hill, towards the south part of the railroad yards? A. No; there was an engine drawed my attention at the depot.

"Q. There was an engine over at the depot that drew your attention? A. Yes, sir.

"Q. And you were looking at that engine over there? A. I was watching out for it.

"Q. You were watching it all the time from the time you went out the door until you were struck; is that Night? A. As well as I remember, I didn't any more than put my foot on the track until the caboose knocked me down.

"Q. Well, between the toolhouse door and the track, and until you got on the track; you had to take some steps while you were going that distance, didn't you? A. Yes.

"Q. And while you were going that distance, you were looking at the engine over at the station; is that right? A. I didn't exactly have my eyes on the engine, but I never seen nothing on the track by the engine.

"Q. You were...