Liston v. St. Louis Transfer Ry. Co.

• Decision Date: 07 July 1910
• Citation: 149 Mo. App. 231,130 S.W. 381
• Parties: LISTON v. ST. LOUIS TRANSFER RY. CO.
• Court: Missouri Court of Appeals

130 S.W. 381

149 Mo. App. 231

LISTON v. ST. LOUIS TRANSFER RY. CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — PERFORMANCE OF DUTY — PRESUMPTION.

Since an order, given by the foreman of a switching crew to a member thereof, to watch cars moved in the plant of a manufacturer to see that they did not get in contact with a tank near the track, was not a direction to him to stay there after the cars had passed and when that was done, and it was his duty to assume his regular place in the work at the rear of the train, in the absence of a showing to the contrary, it will be presumed that he undertook to reach the rear of the train so that he might assist in his work of coupling cars, and hence that he was in the line of his duty at the time he was killed while undertaking to reach the rear of the train.

2. MASTER AND SERVANT (§ 278) — INJURY TO SERVANT — NEGLIGENCE — EVIDENCE.

In an action for the death of a switchman crushed between a car and a building near the track in the plant of a manufacturer while cars were being switched, evidence held to justify a finding of negligence in ordering the crew of which decedent was a member to do switching in the nighttime as was done.

3. MASTER AND SERVANT (§ 289) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Whether a switchman killed by being crushed between a car and a building near the track in the plant of a manufacturer, where switching was carried on, was guilty of contributory negligence, held under the evidence for the jury.

4. MASTER AND SERVANT (§ 291) — INJURY TO SERVANT — LINE OF DUTY — INSTRUCTION.

Where, in an action for the death of a switchman crushed between a car and a building near the track in the plant of a manufacturer, the evidence showed that decedent's duty called him to the rear of the train where a car was to be coupled, and that he was found dead near the place where the car was being coupled, a charge allowing a finding that decedent was engaged in the work of aiding in the coupling of the car at the time of the accident was proper.

5. MASTER AND SERVANT (§ 89) — INJURY TO SERVANT — LINE OF EMPLOYMENT.

Where the yardmaster of a transfer railroad company ordered the foreman of a switching crew to go with his crew to the plant of a manufacturer and find a car there and take it out, the order was tantamount to a command to go to any place in the plant where the car might be located, and a switchman under the control of the foreman was in the line of his duty in going to the place where the car was.

6. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — PRESUMPTIONS.

Where the evidence showed that a servant was in the line of his duty at the time he was killed, and that the master was negligent in sending decedent to a particular place to work in the nighttime, the law presumed that decedent exercised ordinary care.

7. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

The defense of contributory negligence is an affirmative one, and the master has the burden of establishing it.

8. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

One suing for the negligent death of a servant need only show that the injury was caused by the negligence of the master, and the burden is then cast on the latter to show that the accident occurred without his negligence, or was caused by the negligence of decedent.

9. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

Where, in an action for the death of a switchman, the evidence showed that he was killed in the line of his duty, and that the master was negligent in sending decedent to a dangerous place in which to work in the nighttime, the master, to excuse itself for having ordered decedent to work in the dangerous situation, had the burden of explaining how decedent came to his death.

Appeal from Circuit Court, St. Charles County; James D. Barnett, Judge.

Action by Bella Liston against the St. Louis Transfer Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for damages in the sum of $5,000 resulting to the plaintiff from the death of her husband, Dennis U. Liston, while in the service of defendant, St. Louis Transfer Railway Conpany, as a switchman at and about the work of coupling up a car and train at or near premises known as house No. 3600 North Second street in the city of St. Louis, by reason of his being crushed to death between a car operated by appellant and the wall of said building. This suit was originally brought against the St. Louis Transfer Railway Company, the St. Louis Merchants' Bridge Terminal Railway Company, and the Mallinckrodt Chemical Works. A demurrer by the St. Louis Merchants' Bridge Terminal Railway Company was sustained, and plaintiff dismissed as to that company. Before the trial plaintiff discovered that the Mallinckrodt Chemical Works was the wrong defendant, since the plant where the accident happened was owned by the National Ammonia Company. Plaintiff therefore dismissed as to the Mallinckrodt Chemical Works, and trial was had against appellant, St. Louis Transfer Railway Company alone.

The petition in this case alleged the incorporation under the laws of Missouri of the various defendants; that defendant St. Louis Transfer Railway Company at said times used and operated the engines and cars mentioned; that the defendant Mallinckrodt Chemical Works owned and occupied the premises mentioned, known as number 3600 North Second street in the city of St. Louis, on which at the times mentioned was located the railway tracks and cars and wall mentioned. Then alleged: That the switch track on the premises of the Mallinckrodt Chemical Works was located and maintained by the Mallinckrodt Chemical Works so near to a wall that it was liable to cause a man to be crushed and injured while working upon said track or being about cars on said track, which fact, it alleges, was known to the said Mallinckrodt Chemical Works and to the St. Louis Transfer Railway Company. That the plaintiff was the lawful wife of D. U. Liston at the time of his death. That on the 6th day of June, 1904, the plaintiff's husband, D. U. Liston, was in the service of the defendant St. Louis Transfer Railway Company as a switchman with the engine herein mentioned, and a part of the duty of his employment was to be on and about said cars to couple and uncouple the same. That on said day, in the nighttime, the plaintiff's said husband, in the discharge of the duties of his said employment, and in obedience to the orders of the agent of his said employer, St. Louis Transfer Railway Company, having authority from said employer to command and control him in the work he was to do on the premises of defendant Mallinckrodt Chemical Works, engaged in aiding in the work at and about of coupling up and taking out a car or cars from said premises, when, owing to said dangerous proximity of the track on which said car was moved he was caught and crushed between a car and the said wall and so injured that he died from said injuries. It is then alleged that the defendant St. Louis Transfer Railway Company was negligent in ordering the plaintiff's said husband to do said work at said times in view of the knowledge of said defendant of the conditions existing on said premises. The separate answer of defendant St. Louis Transfer Railway Company consisted of a general denial, a charge of contributory negligence on the part of Liston in negligently going to a portion of the premises referred to in plaintiff's petition where he knew it was dangerous for him to attempt to pass between the track and the wall, and a charge of assumption of risk on the part of said Liston. Plaintiff replied with a general denial. A change of venue was taken by plaintiff, and the case was sent to St. Charles county.

Plaintiff's evidence tended to show: That plaintiff's husband, D. U. Liston, had been employed for some time previous to his death by the defendant, St. Louis Transfer Railway Company, as a switchman. That on the night of June 6, 1904, he was working with a switching crew of which one George Hiam was foreman. By order of Blevins, the night yardmaster, Hiam and the switching crew proceeded with an engine and two cars up to the yards of the National Ammonia Company. That just about the time of entering the yards of the National Ammonia Company they picked up two more cars. According to the testimony, the engine was pushing the four cars ahead of it and was headed towards the east. The train stopped at a point near the entrance to the yards of the ammonia company. Liston and McDaniel, both of whom were switchmen, got down off the train and stood about opposite the end of it, while Hiam, the foreman, who had a switching list in...