Landes v. Thompson
| Decision Date | 06 January 1941 |
| Citation | 148 S.W.2d 78,235 Mo.App. 772 |
| Parties | ORA LEE LANDES, RESPONDENT, v. GUY A. THOMPSON, TRUSTEE AND RECEIVER FOR MISSOURI PACIFIC RAILROAD, A CORPORATION, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Brown Harris Judge.
REVERSED.
Judgment reversed.
Leslie A. Welch and Richard H. Beeson for appellant.
(1) The demurrer to the evidence should have been sustained because there was no evidence the defendant was negligent. There was no evidence of a duty on defendant's crew to anticipate the presence of plaintiff standing between the rails and hiding behind the end of the car. There was no evidence of a duty to inspect the track or to give a warning signal before coupling up the cars on the track. There was no evidence that the coupling was negligently made with sudden, unusual, and unnecessary force and speed. Lovell v. K. C. S. Ry Co., 121 Mo.App. 466, 97 S.W. 193; Hallihan v. H. & St. J. R. R. Co., 71 Mo. 113; Bardis v. Railway (Pa.), 109 A. 621; Kennedy v. Mo. P. R. R. Co. (La.), 145 So. 695. (2) The demurrer to the evidence should have been sustained because the plaintiff was guilty of contributory negligence as a matter of law. In unnecessarily placing himself in a position of peril between the railroad tracks with his body against the coupler or drawbar of the car, and unmindful of the ever-present danger from cars that might be switched in against these standing cars, of which hazard he was fully aware, the plaintiff convicts himself of such negligence as bars recovery. Kennedy v. Mo. P. R. R. Co. (La.), 145 So. 698; Frisco v. McClinton (Ark.), 9 S.W.2d 1060; Anderson v. C., R. I. & P. (Ia.), 249 N.W. 256; Laughlin v. Railroad, 144 Mo.App. 185, 129 S.W 1006; Keele v. Santa Fe, 258 Mo. 62, 167 S.W. 433; Carton v. St. L.-S. F. Ry. Co., 340 Mo. 531, 102 S.W.2d 608; Carner v. Railroad (Mo.), 89 S.W.2d 947; Dyrcz v. Missouri Pacific, 238 Mo. 33, 141 S.W. 861; Elkin v. St. Louis Public Sew. Co., 74 S.W.2d 600; State ex rel. v. Shain, 126 S.W.2d 1195.
Clark & Krings and Robert L. Holder for respondent.
(1) There was evidence that the defendant was negligent. Whiteaker v. Mo. P. R. R., 15 S.W.2d 955; Willig v. C. B. & Q. R. R., 121 S.W.2d 204; Willig v. C. B. & Q. R. R., 137 S.W.2d 430; Ray v. Railroad, 53 S.E. 622; Winn v. A. C. L. Ry., 87 S.E. 100; Winkler v. Term. R. R. Ass'n of St. Louis, 232 S.W. 482. (2) Plaintiff was not guilty of contributory negligence as a matter of law. Willig v. C. B. & Q. R. R., 121 S.W.2d 204; Willig v. C. B. & Q. R. R., 137 S.W.2d 430; 29 Cyc 516; Wyatt v. Railroad, (N. C.), 72 S.E. 383; Hudson v. Railroad, 55 S.E. 103; Wilkinson v. Southern Ry., 97 S.E. 521; Davison v. Hines, 246 S.W. 301.
--Plaintiff brought this suit to recover damages for personal injuries suffered by him about 9:50 P. M., on August 3, 1938, when he was struck by a freight car operated by the defendant. He recovered judgment in the amount of $ 1000, from which the defendant has appealed.
The single question presented on this appeal is whether or not the court erred in refusing defendant's request for directed verdict tendered at the close of all of the evidence.
Plaintiff was a night watchman and "order filler" for the Empire Storage & Ice Company, hereinafter called company. Two switch tracks of the Missouri Pacific Railroad extend substantially west from the south part of the plant of the company to and across Guinotte Avenue in Kansas City. Plaintiff's work day began at 9 o'clock P. M. The first half of each hour his work required him to be in the buildings of the company; the other half was devoted to inspecting cars standing on the aforesaid tracks and other tracks. The inspection consisted in examining the seals of the cars and ascertaining the kind of grain in each car. Plaintiff at the time here involved started on tour of inspection at 9:33 P. M., found two freight cars coupled together on the north switch track standing south of a building of the company and one freight car standing on the same track a short distance west of the two cars. He examined the seal on the north door of the west most of the two cars, ascertained the contents of the car, made a like examination of the next car to the east. He then went upon the track at the east end of the last mentioned car and stopped because he saw men in the street south of him and thereupon, as related by him, he stepped back, "and as I started to step back I turned my light out and--as quick as I saw them I turned my light out and started to step back around the cars, and just as I started to turn to go around the car I laid my hand over to the coupler to turn to get out of the way and just as I did there was a sudden jerk into the cars and, of course, it hit me, of course, and knocked me down onto the right side of my face and hit me in the back, of course, and bruised up my back and knocked me down between the runway and the car."
He further testified that prior to the accident he had not heard either bell or whistle and had not seen any member of defendant's switching crew or heard or seen anything indicating there would be a movement of the standing cars; that he had not known of switching operations being conducted after 9 o'clock; that in a few minutes after he was hurt the foreman of defendant's switching crew said that he had no cause to believe any one was on the track.
There was evidence showing defendant's employees in charge of an engine pushed cars eastward across Guinotte Avenue and struck the standing cars with more than ordinary force and violence and thus caused the standing cars to move eastward and strike and injure plaintiff. There was nothing in plaintiff's evidence indicating that any member of the switching crew knew of plaintiff's presence in the yard. The plaintiff, however, contends the defendant was guilty of negligence because the switching crew had cause to apprehend plaintiff was likely to be upon the track or in such position that moving the standing cars suddenly and violently would injure plaintiff.
The plaintiff cites and relies upon the following cases in this jurisdiction. [Winkler v. Terminal R. Ass'n of St. Louis, 227 S.W. 625; Whiteaker v. Missouri Pacific R. R. Co., 15 S.W.2d 925; Willig v. Chicago B. & Q. R. Co., 137 S.W.2d 430.]
The plaintiff in the Winkler case was engaged in cleaning the inside of a club car. The evidence of both plaintiff and defendant "clearly established" that cleaners remained in the cars while they were being switched. Therefore, the defendant was under duty to "use such care in switching trains as not to cause injuries to such cleaners." The Whiteaker case was an action based on the humanitarian doctrine and does not aid us in determining the case at bar. The facts in the Willig case show the injured...
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