Loring v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 21 May 1895
• Citation: 31 S.W. 6,128 Mo. 349
• Court: Missouri Supreme Court
• Parties: LORING v. KANSAS CITY, FT. S. & M. R. CO.

31 S.W. 6

128 Mo. 349

LORING v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 2.

May 21, 1895.

RAILROAD YARD — SWITCHING TRAINS — INJURY TO SECTION MAN — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE.

1. There is no negligence in running a switch engine in a railroad yard, where there were no highways to cross, 12 miles an hour, there being no ordinance against it, without giving signals, it being in plain sight of the section men, and on a different track from that on which they were working, and it having passed them several times shortly before, without any signals, on the track on which they were working.

2. A section hand, who crosses from the track on which he is working onto another track just in front of cars pushed by a switch engine, without looking, and with his shoulder turned towards them, though they were in plain sight, and though he knew that they would soon pass, is guilty of contributory negligence.

Appeal from circuit court, Texas county; C. C. Bland, Judge.

Action by Mary L. Loring against the Kansas City, Ft. Scott & Memphis Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action for damages brought by the widow of Frank Loring, who was killed by a train of cars in defendant's yards at Willow Springs on the 7th day of November, 1891. Frank Loring was a section hand working for defendant in its said yards, and the petition alleges that he was killed by and through the carelessness, recklessness, and criminal negligence of defendant's agents, servants, and employés in the manner and by the means following, that is to say: "That said Frank Loring, husband of plaintiff, as aforesaid, at the time aforesaid, was working as a section hand for defendant and the Current River Railroad Company in and on their switch yard at said city of Willow Springs; that while so working on one of the tracks in said yard, the agents, servants, and employés of defendant suddenly and without warning or signals started and set in rapid motion an engine with three box cars in front of it, and ran said engine and cars at a rapid and fast speed on said track where said Loring was at work; that there were no brakemen or other parties on said box cars to give signals or control the motion thereof; that the engineer in charge of such engine and cars could easily have seen said Loring, but was looking in an opposite direction; that while such train was moving and being run as aforesaid the said Loring was struck and caught by the box car in front, and was dragged and carried a long distance, and then run over and killed; that while being so dragged and carried by such cars the said engineer in charge of said train was often signaled and warned of the perilous position of said Loring by many persons near by, but gave no heed or attention thereto, and continued the rapid motion of such train until said Loring was run over and killed; that by and through the criminal carelessness, recklessness, and negligence of the servants and employés of defendant as aforesaid the said Frank Loring was run over and killed." The answer admits the incorporation of defendant, the employment of deceased, but denies that his death was caused by defendant's negligence, and then avers that his death was caused by his own contributory negligence in stepping on a track immediately in front of a moving train, and so close thereto that it could not be stopped in time to prevent the injury to him; and, third, "that if the engineer was in any manner negligent in handling said cars, and if his carelessness contributed to the death of said Loring, or if the death of said Frank Loring was caused by any of his own acts of contributory negligence, or by the concurring negligence of said engineer and said Frank Loring, while the engineer was doing switch work on said tracks, and while said Frank Loring was working as a section hand on said switch tracks in said yard, then the said engineer and said Frank Loring were in law fellow servants, and this defendant is not liable for the injury and death of said Loring, caused by the negligent acts of a fellow servant." The following facts were developed on the trial: At Willow Springs, the Current River Railroad has its western terminus, and maintains union switching yards in connection with the Kansas City, Ft. Scott & Memphis Railroad. There are at least five or six distinct tracks in these yards, perhaps more, and many train men and employés of the two systems which are operated conjointly work in these yards, making up and sending out trains. Frank Loring was working under Foreman Robert Manos, whose section included these yards and tracks, and had been so engaged for four to six months or longer, working regularly on these tracks and switches, prior to his death. The engine and crew, consisting of conductor, engineer, fireman and two brakemen, which did the switching in these yards, came down every morning from Springfield about 7:45, and remained during the day, and returned to Springfield at night. On the morning of the accident the section gang, under their foreman, Manos, were working on a split switch just east of the depot, and had been so engaged for an hour and a half, when the switch engine had occasion to use this switch, which had been spiked by the section men in repairing it. Thereupon Manos and his men, among whom were Murray and the deceased, Loring, removed the spikes, and the engine moved over into a different portion of the yards, took three box cars, and again passed over the same track, and returned, this time pushing the cars in front of it over a track known by them as the "coach" or "scale" track, lying near the one on which the men had been working, but some eight feet from it. While this switching was going on, and before the cars passed the last time, Loring asked Manos if he had not better go for some water, and the foreman, Manos, told Loring and Murray they could go, for they could not do anything till the train got through switching. Thereupon Murray and Loring started off in a northeasterly direction, across the other tracks, and Manos went on with some part of the work. While the location of the different men was not marked on the tracing offered in evidence at the trial, it is evident from the testimony that Manos was near the switch where his work was, and on what is called the "Current River Main Line," — Jones being at work on the same track and about thirty feet east of Manos, — Loring and Murray walking northeasterly, and about to cross the "scale" or "coach" track, the next one to that on which Manos and Jones were, and about eight feet north of it; and the cars pushed by the engine were approaching from the west on the scale track and were near by. Such being the situation, what took place is described by them as follows: Manos says: "I happened to look up, and the cars were nearly against the boys. They did not seem to be noticing the train. Then I hallooed at them, and just as I spoke to them the last time the car struck them, and knocked Frank Loring down in the center of the track, and knocked Murray off one side." Loring was run over, and so injured that he died soon after. Murray, who was with Loring, says: "Me and Loring had started after some water, and was going down through the yards. Loring had stepped inside one of the tracks there, and I was stepping in after him. I had my left foot over the rail. About that time I heard Manos halloo, `Look out, Bill and Frank!' I looked back, and the car struck me in the left side, and knocked me off to one side, — off the track. It knocked Loring down, and ran over him." Brakeman McEwen says: "I was on the end of the car furthest from the engine, — the car that struck Loring. I was climbing up the side of the car when I saw Loring and another man start across the track right in front of the cars, about eight or ten feet from the car. They had started from where they were at work on the main Current River track to cross the `scale' or `coach' track, and only had to go...