Kibble v. Quincy, O. & K. C. R. Co.

• Citation: 227 S.W. 42,285 Mo. 603
• Decision Date: 30 December 1920
• Docket Number: No. 21279.,21279.
• Parties: KIBBLE v. QUINCY, O. & K. C. R. CO.

227 S.W. 42

285 Mo. 603

KIBBLE v. QUINCY, O. & K. C. R. CO.

No. 21279.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Peter Kibble against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed subject to entry of remittitur.

H. J. Nelson and J. G. Trimble, both of St. Joseph, for appellant.

J. W. McKnight, of King City, and Mytton & Parkinson, of St. Joseph, for respondent.

RAGLAND, C.

Action for personal injuries alleged to have been negligently caused by defendant while plaintiff was in its employ as a locomotive fireman and engaged in interstate commerce.

On the 23d day of May, 1917, the plaintiff was firing one of defendant's engines which was hauling a mixed train of freight and passenger cars from Osborn, Mo., to Kansas City, Mo. When the train reached a point where defendant's road crosses the Rock Island Railroad and came to a stop, plaintiff got down out of the cab onto the ground to adjust the injector on his side of the engine. While so engaged the engine started. In attempting to get back on it, his right foot slipped off the engine step, went under the wheels, and was crushed.

The petition charges the negligence as follows:

"That on said date at a point near the place where the defendant's railroad track crosses the track of the Chicago, Rock Island & Pacific Railway Company it became necessary to stop said engine for the purpose of adjusting the injector upon said engine, and after said engine was stopped, and while the plaintiff was in the work of and completing the adjusting of the same, and before he had gotten upon said engine, and while he was in the performance of his duties and working in interstate commerce, the defendant company, through its agents and servants and engineer, carelessly and negligently started said engine without warning this plaintiff, thereby causing said engine to run against, upon, and over the plaintiff, then and there and thereby crushing and mangling his right foot and ankle, necessitating its amputation."

The answer is a general denial.

The accompanying picture of the engine on which plaintiff was working at the time of his injury, and which was introduced by him in evidence, will help visualize the relative positions of the different parts of the engine, and the situation generally, as described by the witnesses:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The boiler extended back through the cab to the gangway between the engine and the tank. The engineer's seat was on the right and the fireman's on the left of the boiler. While occupying their respective stations in the cab, they could not see each other. There were two injectors on the engine, one on the right side and one on the left. The one on the right was operated by a lever in the engineer's side of the cab, the one on the left by a similar lever in the gangway on the fireman's side. By the use of these levers the valves in the primers, through which the water flowed into the boiler, could be opened and closed. They were operated independently of each other, and the duty of keeping the water at the proper level in the boiler seems to have been left entirely to the fireman. The primer on the fireman's side was low down between the drive wheels of the engine. Sometimes this primer "stuck" so that it could not be operated with the lever in the gangway; it was then necessary for the fireman to get down on the ground and loosen it. The driving rod in its vertical motion traversed a space about 2 feet wide— down and up—at each revolution of the wheels. It passed just outside of the primer, having a clearance of 1¾ inches. When the engine came to a stop and the plaintiff got down out of the cab to adjust the primer, the driving rod was at its highest level. The track at the point where the engine stopped was rock-ballasted. The ballast filled the spaces between the ties up level with their surfaces. The ties extended 15 inches beyond the rail and the ballast beyond the ends of the ties about 2 feet. From the ends of the ties the ballast gradually sloped down, the outer edge being approximately 6 inches lower than the top of the ties. The surface of the ground next to the ballast was about 2 feet lower than the top of the tie level. The two large horizontal cylinders shown by the picture are air drums. There was an iron step extending down from the gangway and two handholds or grabirons on each side thereof, one being on the engine and the other on the tank. According to measurements made by one of defendant's witnesses, the front air drum, which extends down lower than the one in the rear, was 4 feet, and the iron step 1 foot and 10 inches; above the top of the ties. No measurements are given of the distances of the grabirons from the surface of the ties. Plaintiff gave 3½ feet as an approximation of the height of the one on the engine, but as shown by the picture it does not extend down to the level of the bottom of the front air drum. The distance from the primer to the step at the gangway was 9 feet and 10 inches.

Plaintiff was the only witness introduced in his behalf. He says that, when they were about a half mile out of Braley, the last station before the Rock Island crossing was reached, he told the engineer that he could not get his injector to work, and that the engineer replied:

"All right; I will put mine on and, when we get to the crossing, you get down and fix it and I will wait for you."

However, when the engine arrived at the crossing, it came to a stop, the engineer gave the usual whistling signal, and, finding the crossing clear, started on regardless of plaintiff's movements. The engine was headed south.

So far as the record discloses, no one saw the plaintiff when he left the cab nor at any time thereafter until he was discovered, by one of the brakemen on the moving train, lying along the side of the track with a crushed foot. His case, therefore, with respect to the manner in which he received the injury and his movements at and immediately prior to the time of its infliction, rests entirely upon his own testimony. What happened after he left the cab we will let him tell in his own language:

Direct Examination.

"Q. When did you get off the engine? A. Just as the engine came to a stop, I took my coal pick, and got down and walked to the injector, about 6 or 8 feet, and I stuck my pick in that hole there to turn that to loosen it.

"Q. Which way were you facing? L. I was facing south.

"Q. Which side of the engine would you be on? A. On that side (indicating left-hand of engine facing south).

"Q. When you were over here (indicating), which way were you facing? A. Facing south.

"Q. Were you upright or bent down at that time? A. No, sir; I was down (indicating stooping position) in this position, making this turn, facing south.

"Q. What happened to you? A. While I was down here making this turn, the engine started; something struck me on the shoulder (indicating) and knocked me down flat along the track, it might have been a drive rod where the side rod comes down, or it might have been the air drum, and with this leg (indicating right leg) square under me.

"Q. Which leg? A. My right leg.

"Q. Did it knock you down? A. Yes, sir.

"Q. What was the condition of your knee with reference to being loose or in a bent position? A. My leg was in a position that couldn't get out of the way; a suppose the track was a little rolling there, and if 2 could have rolled out and got out of the way without getting off of this leg I probably could have done that, but I couldn't, and the only thing I could do then was to get on the engine.

"Q. Suppose you would have laid in the position you were, what would have happened to you? A. It would not clear a man there, and it would have mashed him to pieces; the tank truck or step would have caught me.

"Q. What did you attempt to do? A. I attempted to get on the engine to save myself.

"Q. What did you do? A. I put my foot on the step and got partly up and grabbed the grabiron—I couldn't say for sure whether had hold of the grabiron or not—and my foot slipped off the flange of the step and went under the wheel (indicating). It all happened in a few seconds.

"Q. What did you do when your foot was run over? A. After the tank ran over it, it was bound over the rail until I couldn't pull my leg out, and I had to take my hand and pull my leg off the rail; every wheel was cutting it a little higher every time.

"Q. How high was this step that you speak of from the ground? A. About 2 feet.

"Q. Did the handhold extend up and down there (indicating)? A. Yes, sir; it is connected up right at the gangway about 3½ feet.

"Q. Was there any way you could have saved yourself in the position you were except in the way you did save your life? A. No, sir; I think not.

"Q. Did the engineer give you any warning that he was going to start the engine? A. No, sir."

Cross-Examination.

"Q. And when you came to the Rock Island crossing you dropped down on that side with your pick in your hand to loosen it? A. After I had told the engineer that my overflow was stuck, that was a half mile out of Braley, and he told me to fix it when we got to the Rock Island crossing. * * *

"Q. You stuck your pick point in the clevis joint? A. Yes, sir.

"Q. And gave a little turn and pulled your pick out? A. No; while I had my pick in there giving it this turn, that' is when the engine started up and knocked me down.

"Q. What became of your pick? A. I suppose it was still laying there; I don't know.

"Q. It was not caught by the driving rod coming down? A. I don't recollect taking it out.

"Q. What was it that struck you? A.:t could have been the side rod or the air drum.

"Q. One of those two? A. Yes, sir.

"Q. Where did it strike you? A. On the shoulder and kind of on the back (indicating).

"Q. On your right...