Kippenbrock v. Wabash R. Co.

• Decision Date: 30 March 1917
• Docket Number: No. 17600.,17600.
• Citation: 270 Mo. 479,194 S.W. 50
• Parties: KIPPENBROCK v. WABASH R. CO.
• Court: Missouri Supreme Court

194 S.W. 50

270 Mo. 479

KIPPENBROCK v. WABASH R. CO.

No. 17600.

Supreme Court of Missouri, Division No. 1.

March 30, 1917.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by O. A. Kippenbrock against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Minnis and N. S. Brown, both of St. Louis, and D. H. Robertson, of Mexico, Mo., for appellant. M. J. Lilly and O. C. Phillips, both of Moberly, for respondent.

BLAIR, J.

In the Randolph Circuit court respondent, a freight conductor in appellant's service, recovered judgment for damages for injuries he received when struck by one of appellant's trains in the yards at Moberly. Moberly is a division point. The yard office is a few feet south of the main line; and a double lead, on which two or three switch engines were working at the time respondent was injured, is just north of the main line. About midnight respondent was called for duty. He was to take out a freight train composed of cars destined to points outside the state. His train was made up in the yards on a track north and west of the yard office, which office is south of all the tracks. One of appellant's passenger trains due from the west at 2:50 a. m. was late. Respondent went to the yard office, procured his waybills and orders, and left the office on his way to his train. It was necessary for him and all other freight conductors to cross the main track, after leaving the office, in order to get to trains to which they were assigned. The distance of the yard office from the south rail of the main line is estimated by the witnesses to be from four to six feet. There is evidence tending to show that it was known to be customary for conductors to look over the train register, and that respondent did this; that this register indicated that the train which struck respondent was already in; that respondent procured his waybills and orders and went out the east door of the yard office, thence to the north side thereof, and, according to the engineer on the passenger train, was walking westward in the space between the office and the main track when he suddenly discovered appellant's train almost upon him; that he leaped back, struck the building, and "rebounded" against the train, and was injured. There is also evidence that he had walked, in the space indicated, toward the west end of the yard office, and then stepped out upon the main track and proceeded west a few steps further, and then was struck; that this course in going to his train was more convenient and safer than to go directly across the main track; that there was a space six or eight feet wide between the main line and the lead track next north of it, and that employés walked along this space in which there was a pathway. There is no evidence this pathway crossed the main line or was generally used by trainmen in going from the yard office to their trains. There was evidence the main track west from the yard office was straight for a half mile or more, and that an electric headlight, such as was on the engine of the passenger train, could be seen 2 miles away; that the train which struck respondent was running 30 or 35 miles an hour; that it gave no signals, either by bell or whistle, and that the headlight was not burning, and that it reached the yard office before those inside were aware of its approach; that the night was dark, and the testimony warrants an inference that no other lights on the train were visible to one as nearly in front of it as was respondent; and that the yard, west of the office, was unlighted. There is no dispute as to respondent's injury, nor as to the train which injured him.

I. Having constructed its yard office next the main track and south of it and necessarily making up its freight trains north of the main track, and it being necessary for conductors to procure their orders and waybills from the yard office, appellant was bound to know these employés must cross the main line in order to reach their trains. This was notice that such employés were likely to be upon or near the track near the yard office. There was no evidence any particular point was used or recognized as a crossing. In the circumstances it was negligence to run an overdue passenger train past the yard office on a dark night, through an unlighted yard, at a speed of 30 or 35 miles per hour, without sounding bell or whistle, and without a headlight burning, particularly when the train register in the office, as observed by respondent, indicated such train had already passed. A headlight is:

"A common and necessary means adopted by all railroad companies for the protection alike of those rightfully on the train, and on the track, or approaching it in the nighttime. No engine is constructed without such a light, and no train is run in the nighttime by any railroad company under any ordinary circumstances without having it lighted. This is a fact known to all reasonable minds by common experience, and the court committed no error in declaring that it was negligence if the defendant's servants failed to have such a light lighted, and burning at the time of the collision." Becke v. Railway, 102 Mo. loc. cit. 552, 13 S. W. 1055, 9 L. R. A. 157; Gorton v. Harmon, 152 Mich. loc. cit. 476, 116 N. W. 443, 15 Ann. Cas. 461; Burling v. Railway, 85 Ill. loc. cit. 20; B. & O. S. W. Ry. v. Alsop, 176 Ill. loc. cit. 475, 53 N. E. 253, 732; Collins v. Railway, 30 Minn. loc. cit. 33, 14 N. W. 60; Railway v. O'Hara, 150 Ill. loc. cit. 585, 37 N. E. 917; Willis v. Railroad, 122 N. C. loc. cit. 909, 29 S. E. 941; Railway v. McNicholas, 98 Ill. App. loc. cit. 58; Artz v. Railway, 44...