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

• Citation: 127 S.W. 400,143 Mo. App. 279
• Court: Missouri Court of Appeals
• Decision Date: 04 April 1910
• Parties: KING v. ST. LOUIS & S. F. R. CO.

127 S.W. 400

143 Mo. App. 279

KING v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

April 4, 1910.

1. MASTER AND SERVANT (§§ 101, 102) — RAILROAD EMPLOYÉS—TRACK CROSSING.

Where, for the purpose of enabling employés to more readily cross switchyards, a railroad builds a plank crossing across a great number of tracks, and customarily did its switching before the men came to work, it is under duty to exercise reasonable care to furnish men crossing the track a safe place to cross.

2. MASTER AND SERVANT (§ 286)—RAILROAD EMPLOYÉS—NEGLIGENCE OF MASTER—QUESTION FOR JURY.

In an action for death of a railroad employé killed while crossing a passageway across switchyards, whether defendant was negligent held, under the evidence, for the jury.

3. APPEAL AND ERROR (§ 996) — PRESUMPTIONS—WEIGHT OF EVIDENCE.

Where there is substantial evidence which, standing alone, and when considered apart from opposing testimony, tends to support the verdict, the appellate court must indulge every inference of fact in favor of the party offering the evidence which the jury might have indulged.

4. APPEAL AND ERROR (§ 1005)—QUESTIONS OF FACT—APPROVAL BY TRIAL COURT.

An appellate court will be reluctant to hold on the question of negligence that only one inference can be drawn from the evidence, and then draw that inference contrary to that of the jury, whose verdict has been approved by the trial court.

5. MASTER AND SERVANT (§ 289)—RAILROAD EMPLOYÉS — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

In an action for death of a railroad employé killed while walking along a passageway over defendant's switch tracks, whether plaintiff was guilty of negligence held, under the evidence, for the jury.

6. MASTER AND SERVANT (§ 286)—AUTHORITY OF NEGATIVE TESTIMONY.

That the engineer, fireman, and other employés testified positively that signals were given on crossing an employés' passageway, which crossed switchyards at which an employé was killed, does not overthrow negative testimony of an eyewitness to the accident that signals were not given, so as to take the question from the jury.

7. RAILROADS (§ 350)—CROSSING ACCIDENTS —FAILURE TO LOOK AND LISTEN—QUESTION FOR JURY.

While a traveler about to cross a railroad track must use ordinary care which usually demands the use of his faculties of sight and hearing to ascertain whether a train is approaching, failure to look and listen is not negligence as a matter of law under all circumstances; the question usually being for the jury.

8. MASTER AND SERVANT (§ 296)—CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS.

An instruction on contributory negligence, in an action for death of a railroad employé, is fatally defective, where there is nothing in the instruction requiring the jury to find that plaintiff's negligence contributed to the injury.

9. MASTER AND SERVANT (§ 226)—ASSUMPTION OF RISK—NEGLIGENCE OF MASTER.

A servant does not assume risks arising from the negligence of the master.

Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Action by Mary J. King against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action brought by the widow of W. C. King, who on the 30th day of September, 1904, at the city of Springfield, Mo., was killed by being struck by defendant's cars while attempting to cross a railroad track of the defendant company in its switchyards. The plaintiff obtained judgment for the sum of $5,000, from which an appeal has been perfected by the defendant to this court.

As no question is raised over the pleadings, they are not inserted.

The place where plaintiff's husband was killed was where a plank passageway extended at right angles across a number of tracks in the switchyards of the defendant. Those tracks, a dozen or more in number, were parallel, running east and west, and the plank passageway was about 12 feet in width, extending across the tracks from north to south. This part of the yard was used for standing cars which were crippled or for any reason out of use. A large number of cars usually stood on these tracks, leaving a space between the ends of the cars about 12 feet wide—a sort of a lane between the ends of the cars, which were backed up on either side of the passageway. This space between the cars was necessary for the men to use in going to and from their work and to and from the place where, under the rules of the company, they were required to register each morning before going to work. Appellant says that this road was constructed for the use of employés, presumably for the purpose of affording them a reasonably safe passageway and preventing injuries that might occur if the men were allowed to become scattered promiscuously while crossing the tracks. Some 500 employés passed every day over this plank roadway formed by cutting the trains. The passing of the employés over this roadway generally occurred just before beginning their work in the morning between 6 and 7 o'clock, and at noon and night after their work was done.

On the morning of the accident, the tracks were full of cars when W. C. King passed along the roadway between the cars which were backed up on either side against the roadway. It was about 20 minutes of 7 o'clock, the time when the 500 employés were accustomed to cross over the passageway going to work and to register as required by the rules of the company. King had been at work in the yards eight or nine days, but, so far as the evidence shows, had never worked about the yards or shops before that time; but he had worked for the company several years on construction work with shovel and bridge gangs. He was going to work that day temporarily on scrap iron, but in what particular part of the yards does not appear. However, it was not at or near the place where he was killed. The evidence tended to show that, during the time King had worked about the yards, the cars had never been coupled across this passageway in his presence while the men were going to work, but that the coupling was usually done early in the morning before the employés began to cross the tracks.

Appellant's switchman, W. F. Deaton, testified that on this particular morning he was told by his foreman to go down and watch the crossing (where the injury occurred); that it was then about 6 o'clock, and people would be passing there. "He told me to go down there and watch the crossing and to make the coupling, and he would make the other coupling and watch the other crossing. He told me to stay there until the cars got together. They generally tried to get the cars out before the men went to work, but they were a little late that morning, and the men had already commenced to go to work."

King passed along the passageway on the morning he was killed, going south towards the place where he was required to register, and this, as before stated, was about 20 minutes of 7 o'clock. When he got upon track No. 11, which was apparently about halfway from the north to the south side of the passageway, he was caught and crushed to death by a train backing across the passageway from the west against a car on the opposite side. The tracks of the defendant company on the west side turned sharply towards the south. There was a train on the west side of the passageway on track No. 11, with seven cars to the first cut which stood next to the crossing, and this train had been cut in three sections. The engine was around the curve on the other side of the roundhouse and out of sight of a person traveling over the passageway. There were perhaps about 20 cars in the train, including the engine, standing west of the passageway on track No. 11. Right at the crossing on the east side of the passageway was a box car; on the west side next to the passageway was a flat car.

The evidence as to what took place at the time King approached the crossing is conflicting. The evidence for the defendant tended to show that, at the time King approached to cross track No. 11, the defendant's switchman, Deaton, stood facing King looking north in plain view within a few feet of him, and that by motioning, calling, and hallooing, the switchman warned King not to go upon the track; but that deceased paid no heed to the warnings and went upon the track without stopping to look or to listen; that he was caught between the box car and the flat car, receiving injuries from which he soon died; that at the place of the accident, and soon thereafter, deceased declared to Deaton, the switchman, that he, and not the company, was to blame for the injury. The testimony of two other witnesses tended to corroborate Deaton as to his warnings to King not to go upon the track.

The evidence for the plaintiff tended to show that H. J. Height, brother-in-law of deceased, was a few feet behind King and also in the passageway at the time of the accident; that he, too, was going south, but was some 30 feet behind King and in plain view of him at the time the accident occurred. He testified that, looking south from where he stood, at the time of the accident there was no person in view on the south side of track No. 11; that no notice was given to deceased; that, if any person had been south of the track near the place of the accident, he would have seen him. He further testified that he was at the place of the accident immediately after it occurred; that he took his brother-in-law in his arms and remained with him until he was removed in an ambulance; that King made no statement as to his being to blame; that King made no statement to any one except to him, and made no statement to Deaton, the switchman; that King's only remark was when he asked him (Height) to go and get his boy, and said, "It is all over with me, boys." The evidence also tended to show that King on approaching track No. 11 could only see four or five car lengths to the west, and could not have seen the first cut in the train west of the passageway.

W. F....