Karr v. Chicago, R. I. & P. Ry. Co.

Citation108 S.W.2d 44,341 Mo. 536
PartiesGeorge F. Karr v. Chicago, Rock Island & Pacific Railway Company, a Corporation, Appellant
Decision Date30 July 1937
CourtUnited States State Supreme Court of Missouri

Appeal from Clinton Circuit Court; Hon. R. B. Bridgeman Judge.

Reversed.

Luther Burns, L. E. Durham, Hale Houts and I. M. Lee for appellant.

The court erred in refusing defendant's requested peremptory instruction directing a verdict for defendant at the close of all the evidence. The record presents no submissible issue of actionable negligence on the part of the defendant. It was plaintiff's duty to look out for trains and vehicles and he assumed the risk of injuries therefrom. A railroad, in the operation of a train at a grade crossing, owes no duty to its crossing flagman other than the duty to exercise ordinary care to avert injury to him when and after it actually discovers him to be in a position of peril, and a submissible case was not presented upon such theory. Bode v Wells, 322 Mo. 396; Phillips v. Ry. Co., 226 S.W. 865; Kinnard v. Westerman, 279 Mo. 688; Clay v. Ry. Co., 5 S.W.2d 412; Aerkfetz v Humphreys, 145 U.S. 418; Chesapeake & Ohio Ry. v. Nixon, 271 U.S. 220; Davis v. Ry. Co., 276 F. 187; Southern Ry. v. Verelle, 57 F.2d 1011; Jacobson v. Railroad Co., 66 F.2d 691; Fryer v. St. L.-S. F. Ry. Co., 333 Mo. 754; Robinson v. C. & E. I. Ry., 64 S.W.2d 661; Riley v. Wabash, 328 Mo. 910; Baltimore & Ohio v. Groeger, 266 U.S. 521; New York Central v. Ambrose, 280 U.S. 486; C. M. & St. P. Ry. v. Coogan, 271 U.S. 478; Martin v. Wabash Ry., 325 Mo. 1132, 30 S.W.2d 725; Jones v. Ry. Co., 325 Mo. 1159, 30 S.W.2d 481; Voorhees v. Railroad Co., 325 Mo. 844, 30 S.W.2d 21; Blunt v. Pa. Railroad, 9 F.2d 395; Dretzka v. C. & N.W. Ry., 256 N.W. 705; Lind v. C. M. & St. P., 256 N.W. 708; Winfree v. Seaboard Airline, 155 S.E. 260; Marklinger v. Railroad Co., 95 Kan. 69, 147 P. 1132; Coniff v. Ry. Co., 99 S.W. 1155; Coleman's Admx. v. Ry. Co., 63 S.W. 40; Zulke v. Railroad Co., 110 N.W. 493; Griffith v. Ry. Co., 132 Kan. 286, 295 P. 687; Wickham's Admr. v. Railroad Co., 122 S.W. 156; Frese v. Railroad Co., 263 U.S. 1, 44 S.Ct. 1, 68 L.Ed. 131; Davis v. Kennedy, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212; Jacobson v. Railroad Co., 66 F.2d 691; Bennett v. Ry., 183 N.W. 426; Hamilton v. Railroad Co., 234 N.W. 813; Herrell v. Railroad Co., 322 Mo. 562, 18 S.W.2d 481; Smith v. C. R. I. & P. Ry., 228 Mo.App. 604; Waters v. Railroad Co., 178 N.W. 536; K. C. & S. Ry. Co. v. Shoemaker, 249 F. 458; State ex rel. Lusk v. Ellison, 271 Mo. 474; Norfolk & Western Railroad Co. v. Kratzer, 37 F.2d 523; Steele v. K. C. Southern, 265 Mo. 117; Ingram v. Railroad Co., 326 Mo. 173; Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 604; Gulf M. & N. Ry. Co. v. Wells, 275 U.S. 459; Pa. Railroad Co. v. Chamberlain, 288 U.S. 342; McGowan v. Wells, 324 Mo. 666; Caylor v. Ry. Co., 332 Mo. 859, 59 S.W.2d 664; St. Louis-S. F. Ry. v. Mills, 271 U.S. 344; New York Central v. Ambrose, 280 U.S. 486; Santa Fe v. Toops, 281 U.S. 351; Shepherd v. Railroad Co., 335 Mo. 610; Burge v. Railroad Co., 244 Mo. 102; Sullivan v. Railroad Co., 317 Mo. 1009; State ex rel. v. Bland, 313 Mo. 254; Rollison v. Railroad Co., 252 Mo. 540; Markowitz v. Railroad Co., 186 Mo. 359; Gunning v. Cooley, 281 U.S. 94.

Pross T. Cross, Gerald Cross, Guy W. Green, Jr., and Trusty & Pugh for respondent.

(1) Defendant's demurrer to the evidence was properly overruled and defendant cannot now complain of the trial theory in which it joined, because (a) The plaintiff was directed to work at the place where he was injured, and defendant owed him a duty not to negligently make his place unsafe by hurling objects on him; Howard v. C. & A., 179 Ill.App. 380; San Antonio, etc., Co. v. Blair, 173 S.W. 1186; Geddings v. A. Const. Ry. Co., 91 S.C. 477; Western, etc., Ry. Co. v. Bailey, 31 S.E. 547; Jackson v. Galveston, etc., Ry., 37 S.W. 787; Hoffman v. Peerless, 296 S.W. 764; McNairy v. Pulitzer, 274 S.W. 849; Setz v. Pelligreen, 203 S.W. 505; Schuh v. Am. Car Co., 241 S.W. 641; Primus v. A. Coast Line Railroad Co., 171 S.E. 1, certiorari denied, 54 S.Ct. 56; Pecos, etc., Ry. Co. v. Suitor, 219 S.W. 1034; M. K. & T. Ry. Co. v. Goss, 72 S.W. 95; Betchman v. Seaboard Ry. Co., 55 S.E. 140; Wilkerson v. Frisco, 124 S.W. 543; Scott v. Seaboard Ry. Co., 45 S.E. 129; Payne v. Young, 108 S.E. 312; Monk v. Wabash, 150 S.W. 1083. (b) The trainmen were under an admitted and conceded duty to look for and obey signals of danger given by the plaintiff. Washington, etc., Ry. Co. v. McPherson, 26 F.2d 989, certiorari denied, 49 S.Ct. 13; Bourdier v. Railroad Co., 60 So. 78; C. & O. v. Brown, 153 S.W. 753; Murphy v. C. G. W., 118 N.W. 390; Texas & Pac. Ry. Co. v. Guidry, 9 S.W.2d 284; Frisco v. Maynord, 246 F. 145. (c) It is conceded that the trainmen were under a duty to keep a reasonable lookout for danger, at the crossing, and admitted that they were looking, and they are charged with seeing what could have been seen. Beal v. C. B. & Q., 285 S.W. 484; Cleveland, etc., Ry. Co. v. Mann, 132 N.E. 646; Haley v. Railroad Co., 93 S.W. 1120; Montague v. M. K. & T. Ry. Co., 264 S.W. 813; Rawie v. Railroad Co., 274 S.W. 1030; Williams v. St. L. Pub. Serv. Co., 73 S.W.2d 199; Demarest v. Ry. Co., 93 N.Y.S. 663.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION
FERGUSON

Plaintiff was employed by the defendant Railway Company as a flagman or watchman at the crossing of a street over defendant's railroad tracks in the city of Columbus Junction, Iowa. On October 20, 1931, a collision between an automobile and one of defendant's interstate passenger trains occurred at this crossing. The automobile was thrown from the track and struck and injured plaintiff. Alleging that the injuries sustained were the proximate result of certain enumerated negligent acts and omissions of defendant, plaintiff brought this action under the Federal Employers' Liability Act. Upon a trial in the Circuit Court of Clinton County, plaintiff had verdict, and judgment thereon, for damages in the amount of $ 15,000. Defendant's appeal therefore comes to this court.

Defendant, as appellant, asserts: (1) That its request for a directed verdict, at the close of all the evidence, should have been granted and that the trial court erred in refusing same; and (2) that, if it be held a submissible case was made, certain instructions given at plaintiff's request were erroneous. By first giving an outline of the general situation shown by the undisputed facts and a statement of the evidence relied upon by plaintiff as showing actionable negligence we can perhaps more clearly develop plaintiff's theory and the applicable law.

Defendant's railroad tracks run north and south. The business section of the city of Columbus Junction (Iowa) is west of the railroad tracks. Main Street runs north and south and from building line to building line is eighty feet, and from curb to curb sixty feet, in width. Walnut Street is an east and west street. It intersects Main Street and continues east crossing the railroad tracks. This is the crossing at which the collision occurred. Two, north and south, railroad tracks cross Walnut Street. The west track is referred to as "the passing track," the east track is the "main line track." The train involved in the collision was an interstate passenger train traveling north on this east or main line track. The following measurements and distances should be noted: it is four feet and eight and one-half inches between the rails of the tracks; from the east rail of the west (or passing) track to the west rail of the east or main line track is approximately eight feet (seven feet and eight inches); it is ninety-three feet from the center of Main Street to the center of the main line track; from the east line of Main Street to the west rail of the main line track (on which the collision occurred) is a distance of approximately, and not exceeding, fifty-one feet; and at the east line of Main Street Walnut Street is thirty-nine and three-tenths feet in width, from curb to curb, but the curb line ends about six feet from (west of) the west rail of the first (the passing) track and from that point and crossing the railroad tracks Walnut Street narrows to thirty-four and three-tenths feet in width. There is an unbroken row of two and three story brick business buildings on each side, both north and south, of Walnut Street, between the railroad right of way and Main Street, fronting on Main Street, the rear extending to or near to the railroad right of way. The first building south of and abutting on Walnut Street is two stories in height as it fronts on Main Street and three stories at the rear overlooking the right of way. It extends east along Walnut Street from the east building line of Main Street approximately twenty-four feet. There is a descending grade on Walnut Street from Main Street to a point near the west (or passing) track, about seventeen feet west of the center of the main line track, of about twelve per cent. From the point mentioned and over the tracks and east thereof the street is "practically level." The crossing is in full view of persons traveling east on Walnut Street toward it for more than a block west of and before getting to the west side of Main Street. The station building is east of the main line track and about 400 feet north of the crossing of Walnut Street over the tracks, the south end of the platform being about 212 feet from the north side of the crossing with a concrete walk extending from the south end of the platform to the crossing. The station park or grounds extend south to Walnut Street, so it appears that a train stopping at that station would travel but little more than two hundred feet north of the crossing to come alongside the station platform.

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