Lancaster v. Atchison, Topeka & Santa Fe Railway Company

• Citation: 127 S.W. 607,143 Mo.App. 163
• Parties: J. D. LANCASTER, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
• Decision Date: 07 February 1910
• Court: Court of Appeals of Kansas

127 S.W. 607

143 Mo.App. 163

J. D. LANCASTER, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1910

Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.

AFFIRMED.

Judgment affirmed.

Thomas R. Morrow, Cyrus Crane, James P. Gilmore, Samuel W. Sawyer and John H. Lathrop for appellant.

(1) The defendant's employees were not guilty of negligence. Evans v. Railroad, 178 Mo. 508; Cahill v Railroad, 205 Mo. 393; Sissel v. Railroad, 214 Mo. 515; McKee v. Railroad, 96 Mo.App. 671. (2) The plaintiff was guilty of contributory negligence. Moore v Railroad, 146 Mo. 572; Davies v. Railroad, 159 Mo. 1; Hurst v. Railroad, 163 Mo. 309; Evans v Railroad, 178 Mo. 508; Clancy v. Railroad, 192 Mo. 615; McGrath v. Transit Co., 197 Mo. 97; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Sissel v. Railroad, 214 Mo. 515; Grout v. Central Electric Co., 125 Mo.App. 552; Schaub v. Railroad, 113 S.W. 1163. (3) The switch crew, including the engineer and fireman, were fellow servants of the plaintiff, and he cannot recover for their negligence, even if they were negligent. McDermott v. Railroad, 30 Mo. 115; Rohback v. Railroad, 43 Mo. 187; McGowan v. Railroad, 61 Mo. 528; Long v. Railroad, 65 Mo. 225; Zimmerman v. Railroad, 71 Mo. 476; Blessing v. Railroad, 77 Mo. 410; Corcoran v. Railroad, 78 Mo. 567; Renfro v. Railroad, 86 Mo. 302; Parker v. Railroad, 109 Mo. 362; Card v. Eddy, 129 Mo. 510; Lanning v. Railroad, 196 Mo. 647; Koerner v. Car Company, 209 Mo. 141; Tabor v. Railroad, 210 Mo. 385; Strottman v. Railroad, 211 Mo. 227; Broadwater v. Railroad, 212 Mo. 437; Mathieson v. Railroad, 118 S.W. 9.

E. H. Gamble, Clyde Taylor and W. J. Costigan for respondent.

(1) Appellant was negligent in not warning respondent of the locomotive's approach. Koerner v. Car Co., 209 Mo. 142; Brick Co. v. Shanks, 69 Kan. 306, 76 P. 856; Johnson v. Railways, 203 Mo. 381; 23 Am. and Eng. Ency. Law (2 Ed.), sub. "Negligence," p. 768; 5 Thompson on Negligence, p. 187; Railway v. McGlamory, 89 Tex. 635, 35 S.W. 1058; Steffe v. Railway, 156 Mass. 262, 30 N.E. 1137; Taylor v. Railway (Tenn. 1893), 27 S.W. 663; Railway v. Slattery, 57 Kan. 409; Dickson v. Railway, 104 Mo. 504; Gulick v. Clarke, 51 Mo.App. 33; Snyder v. Railway (1899), 60 Ohio St. 477, 54 N.E. 475. (2) Respondent, a car inspector, not a fellow servant with switching crew. Parker v. Railway, 109 Mo. 391; Sullivan v. Railway, 97 Mo. 113; Murphy v. Railway, 98 Mo. 537; Dayharsh v. Railway, 103 Mo. 575; Koerner v. Car Co., 209 Mo. 142; Miller v. Railway, 112 Mo. 86; Schlereth v. Railway, 115 Mo. 87; Jones v. Railway, 178 Mo. 528; Young v. Railway, 196 Mo. 647.

OPINION

JOHNSON, J.

This is a personal injury suit brought to us by appeal from a judgment of $ 7500, in favor of plaintiff. The injury occurred during the night of April 12, 1904, in the yards of defendant at Ottawa, Kansas, a division station. Plaintiff was working for defendant as night car inspector and had been thus employed for two weeks. It was his duty to inspect trains that came into the station and to designate cars found in bad order. Among them, was a mixed train called "the Burlington," which arrived off a branch line at about nine o'clock every evening. Ottawa was the end of this train's run and in a few moments after the arrival of the train the switching crew would begin to break it up and distribute its cars over the yard. During the brief period the train stood at the depot, plaintiff was expected to inspect the cars, and it was while he was engaged in this task that a switch engine struck and hurled him to the ground and ran over one of his legs.

The tracks of defendant at Ottawa run north and south and immediately south of the union depot are crossed by Tecumseh street, a public thoroughfare. The Burlington train came in from the south, on the east track, and stopped in front of the depot. The locomotive stood at a point opposite the end of the depot platform and about 350 feet north of Tecumseh street. In a few moments it was detached from the train and run forward. Eight feet west of the track on which the train stood was a parallel track. Immediately north of the depot platform and just east of the first track stood a switch shanty. While plaintiff and the crew of the switch engine were waiting for the arrival of the Burlington train, they stayed in the shanty, but as the train came in, the crew went to their engine which stood on the east track and then pulled forward to the connecting track which enabled them to pass on to the parallel track we have mentioned. Then the switch engine was started south on that track for the purpose of running down to a point south of Tecumseh street where another connecting track would enable it to reach the east main track and then to be backed up to the rear end of the Burlington train. In the meantime, plaintiff had proceeded without delay to inspect the cars of the newly arrived train. He was compelled to work diligently to accomplish his task before the switch engine would begin to break up the train. He had been instructed to finish the inspection while the train stood at the depot. We quote from his testimony:

"A. Why he (the foreman) said if we did not inspect it just as soon as it came into the yard, it was tore all to pieces and scattered all over the yard and put into some other train and hauled off; and that it had to be inspected just as soon as it came into the yards. . . .

"Q. How long a time did the train stand there before it was broken up? A. Sometimes it was broken up right away. At other times the switch engine would be busy or doing something else and they could not get to it for some little time.

"Q. Did you always have time to finish the inspection before the train was broken up? A. Most of the time.

"Q. But sometimes you did not? A. No, sir."

Plaintiff had been instructed to begin his work on the west side of the train. He testified: "A. He (the foreman) said 'We always tack our bad order cards on the northwest corner on the west side of the cars, and that saves a whole lot of trouble in running around the cars.' He says a man can examine a car from the west side all in under, and if he sees anything the matter with the car he can tack his card on and he is done with that car. 'Therefore,' he says, 'we always begin on the west side of the train.'"

The evidence of plaintiff tends to show that while the switch engine was passing down the west track it cleared the cars of the Burlington train by three feet and seven inches. Plaintiff, who weighed one hundred and eighty-five pounds and whose body was twenty-six inches wide, was working between the two tracks. He thus relates what befell him:

"Q. Go ahead and tell us just what happened and what you did. A. I inspected on down some seven or eight cars.

"Q. Tell us what you did. A. I first looked at the trucks on the north side; the north side of the trucks under the north end of the car, and then I walked on a step or two and looked at the south side of the same trucks, and then passed on down and examined the airbrakes in the center of the car, and then passed on down to the south end and looked at the north side of the south trucks, passed on and looked at the handholds, and on down to the next car in the same way until I came to the last car in the train next to the accommodation coach. I inspected the north end of that car, passed on down to the center and inspected the north side of the trucks at that end, the trucks under the south end of the car, and turned around and straightened up to flash my lantern on the handholds and I was struck and knocked down.

"Q. What struck you? A. The switch engine.

"Q. In what direction was it moving? A. South.

"Q. Which way were you facing at the time it struck you? A. Southeast.

"Q. Where did it strike you? A. Along right on the side of the leg and hip.

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

"Q. When it struck you, you were thrown down? A. Yes, sir.

"Q. What happened? A. Why, it knocked me some ten or fifteen feet and I rolled over a time or two and fell with my head first or to the east and with my feet to the west with one foot over the rail.

"Q. Go on. A. It ran over me and it stopped; it got about four feet by me before it stopped."

The switch engine did not ring the bell, was not using steam, was making but little noise, and plaintiff was not conscious of its stealthy approach. He looked for it as much as his work would permit. We quote again from his testimony:

"Q. Going back to what happened just before and at the time of this accident again; state whether you had looked to the northward at any time after you started in inspecting this Burlington train before you were struck by the switch engine? A. Yes, sir.

"Q. Did you look up at any regular intervals in the course of your work there, or not? A. I generally would inspect one side of the truck and then look up, and then inspect the other side of the truck and then look up, and then go to the center and inspect the airbrake and then look up.

"Q. You say that after you would inspect a truck you would look up, and then inspect the other side of it and then look up again? A. Yes, sir.

"Q. When you were inspecting the truck from the north side of it, which way would you look after inspecting that? A. Facing north; no, facing south.

"Q. Then, when you would inspect the truck from the south side, what would you do? A. Look to the north.

"Q. So you would look alternately to the south and then to the north? A. Yes, sir.

"Q. I want you to state not only with reference to what you would do in regard to looking at the truck, but what you did with reference to keeping a lookout on that track behind you. ...