Johnson v. St. Louis & S. F. R. Co.

Citation160 Mo. App. 69,141 S.W. 475
PartiesJOHNSON v. ST. LOUIS & S. F. R. CO.
Decision Date04 December 1911
CourtCourt of Appeal of Missouri (US)

An employé, loading cars on switch tracks, on completing the work, passed between two cars, and he was killed by a switch engine jamming them together. He could have left the premises without passing between the cars; but passing between them was not dangerous, unless the switch engine should be brought in against them while he was between them. Held, that the question of his contributory negligence depended on whether he had reasonable ground to apprehend the coming of the engine at the time; and the rule that, where there is a safe way and an unsafe way open to a person, and he voluntarily takes the unsafe one, he is guilty of contributory negligence was inapplicable.

4. APPEAL AND ERROR (§ 1001)—VERDICT— CONCLUSIVENESS.

A verdict, rendered under proper instructions and sustained by substantial evidence, is conclusive on appeal.

5. DEATH (§ 76) — SERVANT — NEGLIGENCE — EVIDENCE.

In an action for the death of an employé, caught between two cars on a switch track, jammed together by a switch engine, evidence held to show that, according to custom known to decedent, the men in charge of the switch engine had no right to come in on the track until the switch foreman had received the switch list, which was not delivered until the cars were loaded, and that the custom was violated at the time of the accident, authorizing a recovery under Rev. St. 1909, § 5425, for death caused by negligence in operating engines.

6. DEATH (§ 14)—SERVANT—OPERATION OF TRAINS—STATUTES.

Where the movements of a switch engine were controlled by the presence and absence of lights, and the lights, when present, were notice that the engine should not be moved against cars on a switch track, because men engaged in loading and reloading them had not completed their work, the negligent failure to maintain lights, so as to prevent the premature running of the engine against the cars, was within Rev. St. 1909, § 5425, authorizing actions for death caused by negligence in the operation of engines or trains.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by John R. Johnson, administrator of J. O. Johnson, deceased, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans and Mann, Johnson & Todd, for appellant. Sizer & Kemp, for respondent.

COX, J.

Action by administrator of J. O. Johnson for damages for the death of Johnson. Judgment for plaintiff for $4,000, and defendant has appealed.

Deceased was in the employ of defendant at Monett, Mo., as "freight digger," and while attempting to pass between two freight cars was caught and killed by the cars being suddenly jammed together. Monett is a division point on defendant's road, and a large amount of freight is removed from cars there and reloaded for shipment to its destination. To facilitate this work, three switch tracks are maintained, each of which connects with the lead track that leads to the roundhouse, where engines are kept. In a general way, these switch tracks run east and west, and connect with the lead track on the east. These tracks are numbered 1, 2, and 3, counting from the north. North of track 1 is the office. Between tracks 1 and 2 is a covered platform, 640 feet long, the floor of which is on a level with the floor of the cars. Johnson worked at night, and his duties were to go inside the cars and dig out or separate the freight therein, and pass it out to the truckers on the platform, who would truck it to the proper car for reloading. His time to quit work was usually 1 a. m., but if the work was not done at that time he was required to stay until it was finished. When the freight was all reloaded, the cars were then sealed, and this was the last act of the workmen before the cars were turned over to the switch crew to be placed in the proper train. On the night of Johnson's death, there were several cars on track 1, three of which extended east of the office. Johnson was apparently the last man that left the platform that night. He sealed a car on track 2, and evidently started across to the office, and in doing so attempted to pass between two cars on track 1 by stepping on the dead woods of the cars, which were beams on the ends of the cars on a level with the floor of the platform. One of the two cars between which he attempted to cross was a bad order car, having the draw-bar out, and was fastened to the other car with a chain. The condition of this car permitted these two cars to come closer together than the other cars, and as Johnson passed through the engine came against the cars on this track, and as these two cars came together Johnson was caught between the truss rods of the two cars, and killed. It was the common practice for the workmen after quitting their work to go across to the office to give in their time, get their coats, lunch baskets, etc., before going home. It was also a common practice for them in doing so, and while at their work also, to cross from one platform to another between the cars by stopping on the dead wood. Thus far there is no conflict in the testimony. Plaintiff's testimony further tended to show that when the work was completed the foreman made up a switch list; that is, a statement, giving the number and location of each car to be taken out. This switch list was then turned over to the foreman of the switch crew, and he then determined which cars should be first taken out, and gave orders to the engineer in charge of the switch engine accordingly; that it was the duty of the engineer to keep his engine on the lead track, and not come in on the switch track until he was ordered to do so; that the reloading should be completed, the cars sealed, and the switch list made out and delivered to the switch foreman before any orders to come in on a switch track were given to the engineer, and that the workmen were all familiar with these practices; that for a long time prior to the accident blue lights had also been maintained on the track between the cars and the lead track, or on the ends of the cars, to prevent the switch engine coming in on the switch track before the cars were ready to be moved, but that for two or three weeks just prior to the accident the use of these lights had been discontinued, and none were in use on this night. The engineer, without receiving any orders to come in on track 1, at about 1:10 a. m., ran against the cars on this track, and thus caught and killed Johnson. Other facts will be noticed in the course of the opinion.

The first contention of appellant is that the demurrer to the testimony should have been sustained, upon the ground that it affirmatively appears that deceased was guilty of contributory negligence. This contention is based upon two grounds: First, that it was negligence per se for deceased to attempt to pass between the two cars under the circumstances of this case. As viewed from defendant's standpoint, the one car being out of repair, thus making it sure that in case the engine would strike the cars on that track while he was passing through between them they would likely be jammed so close together that he would be caught, and that Johnson did not know and could not know that the engine was not likely to come against the cars at any time, shows him to have been guilty of negligence, as a matter of law, in attempting to pass between the cars at that time, and cites us to the following cases to sustain this contention: Hudson v. Railroad, 101 Mo....

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    • United States
    • United States State Supreme Court of Mississippi
    • June 6, 1938
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  • Cody v. Lusk
    • United States
    • Court of Appeal of Missouri (US)
    • December 12, 1914
    ... 171 S.W. 624 187 Mo.App. 327 JOSEPH CODY, Respondent, v. JAMES W. LUSK, W. C. NIXON, and W. B. BIDDLE, Receivers of the ST. LOUIS and SAN FRANCISCO RAILROAD COMPANY, Appellants Court of Appeals of Missouri, Springfield December 12, 1914 . .           Appeal. from ... Mo.App. 623; Folk v. Schaeffer, 186 Pa. 253;. Blanton v. Dold, 109 Mo. 74-75; Sackewitz v. Biscuit Co., 78 Mo.App. 151; Johnson v. Railroad. Co., 104 Mo.App. 592. (2) The duty to furnish horses and. extensions reasonably safe is a prime duty and cannot be. delegated to ......
  • Cody v. Lusk
    • United States
    • Court of Appeal of Missouri (US)
    • December 12, 1914
    ...that he knowingly remained in a dangerous position. Johnson v. Railroad, 164 Mo. App. 600, 623, 147 S. W. 529; Johnson v. Railroad, 160 Mo. App. 69, 78, 141 S. W. 475; Gordon v. Railroad, 222 Mo. 516, 536, 121 S. W. 80. We hold therefore that the plaintiff made a case for the jury on the ne......
  • Cherry v. St. Louis & S.F.R. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • April 1, 1912
    ......Railroad, 101. Md. 50; Railroad v. Grissom, 82 S.W. 670. (5). Plaintiff was not guilty of contributory negligence either as. a matter of fact or a matter of law in attempting to climb. between the cars blocking Cedar street, under the facts and. circumstances of the case at bar. Johnson v. Railroad, 141 S.W. 475; Jennings v. Railroad,. 112 Mo. 268; Schmitz v. Railroad, 119 Mo. 256;. Burger v. Railroad, 112 Mo. 238; Wilkins v. Railroad, 101 Mo. 93; Railroad v. Landrigen, 191 U.S. 461. . .          . OPINION. [145 S.W. 838] . .           [163. Mo.App. ......
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