Kennedy v. Kansas City, St. J. & C. B. R. Co.

• Decision Date: 01 July 1905
• Citation: 190 Mo. 424,89 S.W. 370
• Court: Missouri Supreme Court
• Parties: KENNEDY v. KANSAS CITY, ST. J. & C. B. R. CO.

89 S.W. 370

190 Mo. 424

KENNEDY v. KANSAS CITY, ST. J. & C. B. R. CO.

Supreme Court of Missouri, Division No. 1.

July 1, 1905.

1. MASTER AND SERVANT—SERVANT'S INJURIES —CONTRIBUTORY NEGLIGENCE.

In an action against a railroad company for injuries to a brakeman, owing to a moving car which he was endeavoring to couple to a locomotive colliding with another car, held, that the question whether he was guilty of contributory negligence in not knowing of the position of the other car was for the jury.

2. SAME — MASTER'S LIABILITY — SWITCHING RAILROAD CARS — OBSTRUCTIONS — NEGLIGENCE OF FOREMAN.

In an action for injuries to a brakeman, held, that the foreman of the switching crew was guilty of negligence in failing to give a warning to the engineer; it appearing that those in charge of the moving car and locomotive were in such position that they could not have seen the conditions.

3. SAME—INSTRUCTIONS.

In an action for injuries to a railroad brakeman, owing to a moving car which he was endeavoring to couple to a locomotive colliding with another car, the negligence relied on was the failure of the switching foreman to give warning of the danger, which he discovered in time to have averted the collision, and the court instructed that plaintiff was limited to such negligence, that the jury could not consider the negligence of any other members of the switching crew, that the fact that plaintiff was injured did not entitle him to a verdict, and that in order to recover he must prove that defendant was guilty of negligence as charged in the petition and that it was the proximate cause of the injury. Held, that such instructions were sufficiently favorable to defendant.

4. SAME—ASSUMPTION OF RISK.

In an action for injuries to a railroad brakeman, an instruction requested by defendant declared it to be the duty of the plaintiff to be ordinarily attentive for his own safety and to take all necessary precautions, and that he would not be justified in attempting to pursue and couple to a moving car in order to prevent it from colliding with other cars, if by so doing he was subjecting himself to the risk of injury, and the court modified it by inserting "knew or believed" that he was subjecting himself to risks, etc. Held that, even as modified, the instruction stated the law more favorably to defendant than was authorized.

5. SAME—RISKS ASSUMED BY SERVANT.

A railroad brakeman assumed the risks ordinarily incident to chasing and coupling cars.

6. SAME—NEGLIGENCE OF MASTER.

A railroad brakeman did not assume risks arising from the negligence of his foreman.

Appeal from Circuit Court, Jackson County.

Action by Erastus E. Kennedy against the the Kansas City, St. Joseph & Council Bluffs Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Rehearing denied.

Mosman & Ryan and Warner, Dean, McLeod & Holden, for appellant. Walsh & Morrison, John G. Park, and Rozzelle, Vineyard & Thacher, for respondent.

MARSHALL, J.

This is an action for $20,000 damages for personal injuries, received by the plaintiff on the 24th of February, 1899, while in the employ of the defendant as switchman in its railroad yards at Kansas City, Mo., in consequence of an attempt to chase and couple a car loaded with live stock to an engine, in order to prevent said car from colliding with other cars on the track. The plaintiff recovered a judgment of $7,150, and after proper steps the defendant appealed.

The Issues

The petition alleges that the defendant is a domestic railroad corporation; that on the 24th of February, 1899, the plaintiff was in the employ of the defendant as a switchman in its railroad yards, at Kansas City, Mo.; that it was plaintiff's duty to couple and uncouple cars, switch them about, and make them into trains, and to obey the orders and instructions of his foreman; that it was the duty of the defendant to furnish to plaintiff a reasonably safe place and reasonably safe appliances for doing his work, as also to take proper precautions to prevent injury to plaintiff; that about half past 10 o'clock at night the plaintiff was working with a switching crew of which Thomas Pearch was the foreman and William McKay the engineer; that the coupling appliance on the engine was an old-fashioned and antiquated form of coupler, known as the "common link and pin coupler," and a Jenney coupler on the stock car; that the operation of coupling link and pin couplers with automatic couplers is dangerous, when made in the dark; that at the time and place of accident the plaintiff, in the course of his duty, was riding on the footboard of said engine, which was moving northwardly on short switch track No. 4 in defendant's yards; that plaintiff was endeavoring to overtake a car loaded with live stock, which was immediately in front of him and moving slowly in the same direction; that plaintiff could see signals from the engine cab, and the engineer, McKay, who was looking out of his cab window, could see beyond the stock car certain other cars standing still, which plaintiff could not see; that plaintiff's foreman, Pearch, stood on the ground beside the stationary cars, and knew or might have known of their presence and of the approach of the engine and stock car sufficiently long before the collision to have prevented it by the exercise of reasonable care; that it was the duty of said McKay to keep a lookout, and on seeing said stationary cars to stop his engine and avoid collision with them, and it was the duty of the foreman, Pearch, to signal plaintiff and the engineer to stop or slacken speed, or warn them concerning the stationary cars and to prevent the collision, but neither the foreman nor the engineer gave any signal to indicate the danger, and while plaintiff was thus intent on overtaking and coupling to said car said stock car suddenly crashed into the stationery cars, and plaintiff's right hand, with which he was about to make the coupling between the stock car and the engine, was caught and crushed, so that the greater part of it had to be amputated; that, had the engine been equipped with automatic couplers, as was the stock car, plaintiff would not have been obliged to use his hand, and the injury would not have occurred. The petition then assigns the negligence complained of in the following language: "That said injury was occasioned to plaintiff by the negligence, carelessness, and want of ordinary prudence on the part of defendant and its agents and servants, in that it provided plaintiff with an insufficient and defective coupling, as above described. Plaintiff's foreman failed to warn him of his danger, due to his proximity to the stationary cars, and failed to signal plaintiff or the engineer to stop until too late, and the engineer failed to slacken the speed of the engine, when he saw or might have seen said cars, or knew or might have known of their presence." The trial court instructed the jury to disregard the first and third acts of negligence complained of, and the plaintiff acquiesced in the ruling, so that the case was submitted to the jury on the alleged negligence of the foreman to warn plaintiff of his danger, and said foreman's failure to signal plaintiff or the engineer to stop in time to avoid the accident. The answer admits the incorporation of the defendant and that the plaintiff was a switchman in its employ, and then pleads assumption of risks and contributory negligence. The reply is a general denial.

The case made is this: The defendant is a domestic railroad corporation, and has a switchyard in Kansas City, Mo. It used two switching crews in said yards, which acted independently of each other, but under the direction of the yard master. Plaintiff was a member of one of said crews, and was a switchman. The crew consisted of Pearch, the foreman, Spencer, another switchman, McKay, the engineer, and the plaintiff, and presumably a fireman, though that fact does not distinctly appear. Spencer was called "the switchman in the field"; that is, the switchman whose duty it was to do certain switching. The plaintiff was called "the switchman that follows the engine"; that is, it was his duty to stay with the engine for the purpose of coupling and uncoupling it to and from other cars. For the purposes of this case, the following is a sufficient description of the switching yards. There was a straight track, running north and south, called "short 4." On the prolongation thereof was a straight track called the "lead track." To the left of "short 4" there was a track called "short 5." To the right of "short 4" there was a track which was called "short 3." The switch from the "lead track" to "short 5" was the most southerly switch. Seventy-two feet north thereof was located the switch from the "lead track" to "short 3." The plaintiff and his crew were engaged in making up a freight train, and for this purpose, about an hour and a half before the accident, they had placed some cars on short 4. They then went to some other place. While they were gone, the other switching crew placed some more cars on short 4, but left the most southerly car so close to short 3 that a train could not pass the same on short 3 without colliding therewith, or, as it is termed in railroad parlance, "cornering" with them. Neither the plaintiff nor the foreman nor any member of his crew knew that the other crew had so placed said cars. The night was dark and rainy. About half-past 10 o'clock the plaintiff's crew returned to the scene of the accident. The engine was run onto short 5, and there attached to it a stock car loaded with live stock. Their purpose was to move the stock car from short 5 and place it on short 3. In order to do so, it was necessary for the engine, which was facing southwardly, the engineer, therefore, being on the right-hand side of the engine, to pull the stock car southwardly on short 5 down onto the lead track, beyond the most southerly switch, and then to close the...