Kirkland v. Bixby

• Decision Date: 02 June 1920
• Docket Number: No. 21212.,21212.
• Citation: 282 Mo. 462,222 S.W. 462
• Parties: KIRKLAND v. BIXBY et al.
• Court: Missouri Supreme Court

222 S.W. 462

282 Mo. 462

KIRKLAND v. BIXBY et al.

No. 21212.

Supreme Court of Missouri, Division No. 1.

June 2, 1920.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by E. E. Kirkland, administrator, etc., against William K. Bixby and Edward B. Pryor, receivers of the Wabash Railroad Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

N. S. Brown, of St. Louis, and Sebree & Sebree and Mord M. Bogie, all of Kansas City, for appellants.

Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent.

GRAVES, J.

Action for damages for the alleged negligent killing of Albert Anderson in January, 1914. Defendants were the receivers of the Wabash Railroad Company, and deceased was section foreman on the line of said road at or near Randolph, Mo., near Kansas City, Mo. Anderson was killed in a collision between the hand car upon which he was going to his work and one of defendants' trains. The negligence charged in the petition, upon which trial was had, is as follows:

"Plaintiff alleges that the defendants were negligent and careless in advising said Albert Anderson that he could proceed safely to his destination, when they knew, or by the exercise of ordinary care on their part might have known, that he could not safely so do, and in not maintaining the track, over which said hand car was about to move, in a safe condition and free from trains or cars whose movement might injure persons situated as decedent was; that defendants, by their employés in charge of said train so colliding with the hand car, were further negligent and careless in failing to ring the bell and sound the whistle at such frequent intervals, while running through the fog, as would warn the crew on said hand car of the approach of said train in time to allow the employés on said hand car to safely remove themselves and said hand car from defendants' track; that as a direct result of each and all of said negligent and careless acts of the defendants, as aforesaid, the said Albert Anderson, deceased, was killed."

Answer is (1) a general denial; (2) contributory negligence; and (3) assumption of risk. Reply was a general denial. Upon a trial before a jury in division No. 6 of the Jackson county circuit court, plaintiff had a verdict and judgment for $10,000 and defendants have appealed.

The action was one under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), as said Anderson was foreman of a section crew, and his section covered track both west and east of Randolph. At about 7:30 on the morning of the accident he started west from Randolph with his crew on a hand car, to repair some tracks near what is known as the Milwaukee bridge, within his section. The morning was quite foggy, as they frequently were near the Missouri river. When about a mile and a half west of Randolph, the hand car was struck by an east-bound freight train, and Anderson was killed. Further details will be left to points discussed in the course of the opinion.

There is a motion to dismiss the appeal for failure to comply with rule 15 of this court (198 S. W. vi), in that—

"There are no separate assignments of error as provided by the rules, and under the so-called points and authorities no specific errors are alleged such as to comply with the rules of the court."

Among other cases we are cited to Vahldick v. Vahldick, 264 Mo. loc. cit. 531, 175 S. W. 199. As applied to the facts in this case the ruling in that case does not support respondent. At page 532 of that opinion in 264 Mo. (175 S. W. 200), Faris, J., refers to the universal ruling of this court, in this language:

"It has been held that where appellant, though making no formal collective assignment of errors in any given part of his brief, yet separately assigns error specifically in distinct subheads of his points and authorities, we will accept this as a substantial compliance with the statute and our rules. Perry v. Strawbridge, 109 Mo. 621; Mugan v. Wheeler, 241 Mo. 376; Collier v. Lead Co., 208 Mo. 246."

This announces the true rule of this court, and the cases cited by our former Brother bear him out in the pronouncement. In the particular case he held that this rule had not been met. So, too, as to other cases cited.

But in the instant case the points and authorities bristle with alleged error. There is no formal assignment of errors, but when the points made clearly point out the errors nisi (as here) we have always ruled it to be sufficient. Nor is it necessary to say in the point made that the trial court "erred" in doing so and so, if it is made plain by the language used, considering the record before us, that error is charged. There is no substance in the motion to dismiss the appeal in this case, and it is overruled.

II. The plaintiff's case was submitted to the jury on the sole ground that the agents in charge of the east-bound freight train were negligent in failing to sound the bell and blow the whistle at frequent intervals, upon this foggy morning. This simplifies the issues for present determination. The rule in this state requires section men to protect themselves from passing trains. In other words, the train crew, so far as section men are concerned, have the right to expect a clear track, and the humanitarian rule (when violated) is the only salvation for the unfortunate section man. This rule is not invoked in the instant case. We have written so much upon the status of the section man that we shall not attempt to reiterate, but rest content with the citation of our more recent cases. State ex rel. Lusk v. Ellison, 271 Mo. toe. cit. 468, 196 S. W. 1088; Gabal v. Railroad Co., 251 Mo. loc. cit. 268, 269, 158 S. W. 12; Woods v. Railroad, 187 S. W. 12, 13; Rashall v. Railroad, 249 Mo. loc. cit. 519, 520, 155 S. W. 426; Van Dyke v. Railroad, 230 Mo. loc. cit. 282, 130 S. W. 1; Degonia v. Railroad, 224 Mo. loc. cit. 587, 123 S. W. 807 et seq.

In the instant case the deceased, Anderson, was the section foreman. He was directing the hand car, and he was perfectly familiar with the situation. George Rigley, witness for plaintiff, among other things said:

"Q. At that time of the morning there were a good many trains passing over that particular piece of track, weren't they? A. Yes, sir.

"Q. Those trains were liable to come along at any time? A. Yes, sir.

"Q. There are a number of trains due on regular schedule time—I mean by regular schedule time trains appearing on the time-card—and a good many other trains over that part of the track had no regular time? A. Yes, sir.

"Q. You and Anderson, of course, knew that fact? A. Yes, sir.

"Q. And the Wabash have large storage yards at Randolph, just east of the depot, where they haul in their freight and leave it until such time as is necessary to deliver it over in the city? A. Yes, sir.

"Q. In other words, they break up and make up their trains over there; that is one of the principal freight yards? A. Yes, sir.

"Q. And many trains in addition to the regular trains pass over that track, switch trains carrying cars? A. Yes, sir.

"Q. You and Anderson knew that fact? A. Yes, sir.

"Q. And you people always keep out of the way of those trains, don't you? A. Yes, sir. "Q. You were expected to do that? A. Yes, sir.

"Q. Nobody expected to look out and take care of you? A. No.

"Q. You understood it wag your duty, he understood it was his duty, to keep out of the way of those trains? A. Yes, sir."

So that it is clear that there is no liability in this case, unless the "foggy" condition of the weather changed the situation. As to section men, under ordinary circumstances, the train crew had the right to expect a clear track, and were not required to give warnings, either by bell or whistle, for the benefit of the section men. By this we do not mean that the humanitarian rule, if pleaded, would not require the trainmen to give warnings, if they saw section men wholly oblivious to impending danger. This subject, however, is not in this case.

III. There was evidence tending to show that there was a custom of long standing as to the sounding of the bell and the blowing of the whistle at frequent intervals when the weather was foggy along the river, for the purpose of advising section men of the approaching trains. Whilst there is conflict in the evidence, there was...