Kelly v. Union Ry. & Transit Co.

• Citation: 11 Mo.App. 1
• Parties: JAMES KELLY, Respondent, v. UNION RAILWAY AND TRANSIT COMPANY, Appellant.
• Decision Date: 05 July 1881
• Court: Court of Appeal of Missouri (US)

11 Mo.App. 1

JAMES KELLY, Respondent, v. UNION RAILWAY AND TRANSIT COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

July 5, 1881

Where a person, engaged in making repairs on a railway track knew that a train was approaching but a short distance away, but nevertheless turned his back to it, stooped down and continued his work, and while in this position, was struck by the train and injured, it was held that he was guilty of such contributory negligence as would prevent a recovery, though the defendant was handling the car which caused the injury in a negligent manner and in violation of a city ordinance.

Appeal from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

S. M BRECKINRIDGE, with whom is M. F. WATTS, for the appellant cited: Hallihan v. Railroad Co., 71 Mo. 113; Rains v. Railroad Co., 71 Mo. 164; Zimmerman v Railroad Co., 71 Mo. 476; Henze v. Railroad Co., 71 Mo. 636; O'Donnell v. Railroad Co., 7 Mo.App. 19; Nolan v. Shickle, 3 Mo.App. 300; s. c. 69 Mo. 336.

A. R. TAYLOR, for the respondent, cited: Goodfellow v. Railroad Co., 106 Mass. 461; Railroad Co. v. The State, 33 Md. 554; Schultz v. Railroad Co., 44 Wis. 638; Mauerman v. Sumedt, 71 Mo. 101; Kelly v. Railroad Co., 70 Mo. 604; Crow v. Beardley, 68 Mo. 440.

OPINION

THOMPSON J.

The plaintiff was run over by a train of cars of the defendant, and received an injury which rendered necessary the amputation of his foot; and he has brought this action against the defendant for damages, and has recovered a judgment for $2,000, from which the defendant appeals.

The plaintiff was a servant of the Missouri Pacific Railway Company. He was sent, on January 18, 1879, to put down a rail on the track of the Missouri Pacific railway, in order to connect one of the tracks of this company with a track of the defendant company, at a point near Tenth Street in the city of St. La. There were from ten to twenty railway tracks in the immediate vicinity, and trains were constantly passing and repassing upon them. It was a bright day, but the smoke from the passing engines necessarily darkened the air more or less. The plaintiff commenced the work of fastening the two rails together by means of a fish-bar or iron-strap, which is clamped against the side of the rails by four bolts fastened with nuts. In order to perform this operation he took a position partly on the track of the defendant, and partly on the track of the Missouri Pacific company, with his back toward the east and his body bent down. The outside rails of the two tracks were but two or three inches apart at that point. While in this position an engine of the defendant came along the defendant's track from the east, at the rate of about four miles an hour, backing sixteen cars ahead of it. It came out of the tunnel at Eighth Street, and from where the plaintiff stood could be seen for about the distance of a block of the city of St. La. The testimony is conflicting as to whether the bell of the engine was being rung, and as to whether any man was standing upon the front car. The plaintiff was expecting this train, though he did not see or hear it until it struck him, and inflicted the injury stated. He said in his testimony: " I had been on the lookout for this train; * * * I knew this train was coming on the same track; * * * I was watching out for the train; * * * I heard no bell; * * * I was putting on this nut with my fingers when I saw the train backing up. * * * Q. Did you look to see whether there was a man on the western end of the western car as the train was backing up? A. I didn't look. No, sir. Q. Were you paying any attention at all to the coming train? A. Yes, sir. Q. Were you looking at it? A. No, I was not looking at it. Q. And when you looked up it was just upon you? A. Yes, sir. Q. Couldn't you have faced the other way and done it just as well? A. I could not. Q. Why not? A. Because it would not be handy for me to do it. * * * It would have been safer, I allow that; but it would not have been so handy for me to do the work."

The plaintiff also testified that he had had twenty years' experience as a railroad man; that he had been acquainted with the place where the accident happened for three years, and that he had been working at that point off and on for six or seven days prior to the accident. He had had many years' experience as a track-layer, and knew that it was dangerous. " If a man gets busied with his work," said he, " and gets his mind on it, and forgets, he is liable to be hurt; but if he is wide awake he is not apt to be."

We take it that the plaintiff was not, at the time of the accident, a trespasser on the defendant's track, but that he was presumably there under a license from the defendant. We shall also assume, for the purpose of stating our conclusion, that there was evidence from which the jury might have inferred that the servants of the defendant were driving the train in a negligent manner, and in violation of an ordinance of the city of St. Louis, enacted to promote the safety of persons upon the railway tracks of the defendant within the limits of the city; and that, but for this negligence and violation of law, the accident would not have...