Mason v. St. L. & S. F. Ry. Co.

• Citation: 143 S.W. 551,161 Mo.App. 610
• Parties: O. L. MASON, by Next Friend, Respondent, v. ST. L. & S. F. RY. Co., Appellant
• Decision Date: 22 January 1912
• Court: Court of Appeals of Kansas

143 S.W. 551

161 Mo.App. 610

O. L. MASON, by Next Friend, Respondent, v. ST. L. & S. F. RY. Co., Appellant

Court of Appeals of Missouri, Kansas City

January 22, 1912

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

REVERSED.

Judgment reversed.

Cowherd Ingraham, Durham & Morse for appellant.

(1) Demurrer to plaintiff's evidence should have been sustained. (a) Because plaintiff was clearly guilty of contributory negligence. Renfro v. Railroad, 86 Mo 302; Van Camp v. Railroad, 141 Mo.App. 344; Moore v. Railroad, 146 Mo. 572; Whiteley v Railroad, 109 Mo.App. 123; Montgomery v. Railroad, 109 Mo.App. 88; Cahill v. Railroad, 105 Mo. 393. (b) There was no negligence shown on the part of "the servants of defendant engaged in switching and operating the switch engine." Whiteley v. Railroad, supra; Van Camp v. Railroad, supra; Cahill v. Railroad, supra; Fare v. Railroad, 114 Mo.App. 551. (c) Plaintiff attempts to avoid this conclusive showing of his own negligence and lack of negligence on the part of defendant's employees by attempting to establish a rule or custom that trains were made up thirty minutes before leaving time, and during those thirty minutes they were not to be touched by the switching crew. There was no rule and the testimony does not establish a custom. Shields v. Railroad, 87 Mo.App. 637; Shields v. Railroad, 100 Mo.App. 515. (2) The court erred in giving plaintiff's instruction number 1. (a) There is no evidence that "it became necessary for plaintiff to help out the other air couplers," but on the contrary the testimony shows that plaintiff's own work was not completed. (b) There is no evidence whatever fastening any negligence on "the agents and servants of the defendant engaged in switching and operating a switch engine." See authorities cited under 1, sub. (b). (3) The evidence does show there was a rule requiring a danger signal to be placed on the cars when the men went to work between them and plaintiff and other employees understood that unless such signal was so placed, the cars were liable to be moved at any time. The occasional violation of a rule by an employee does not abrogate the rule. Instruction No. 4, given for plaintiffs was erroneous for the reason there was not sufficient evidence of violation of the Blue Light rule to submit to the jury the question of whether it was still in force. Smith v. Box Co., 193 Mo. 715; Mathews v. Railroad, 227 Mo. 241; Francis v. Railroad, 110 Mo. 387; Schaub v. Railroad, 106 Mo. 92. (4) The court erred in giving plaintiff's instruction number two. (a) There was no causal connection shown between the cinders at the side of the track and the injury received by plaintiff. Swearingen v. Railroad, 221 Mo. 644; Shore v. Bridge Co., 111 Mo.App. 278; Trigg v. Ozark Land Co., 187 Mo. 227; Goransson v. Mfg. Co., 186 Mo. 300. (b) Plaintiff was thoroughly familiar with both the defect and the danger and there was no promise to repair or assurance of safety. Dodge v. Coal & Coke Co., 115 Mo.App. 501; Harris v. Railroad, 146 Mo.App. 524; McManus v. Railroad, 118 Mo.App. 152; Lee v. Railroad, 112 Mo.App. 372; Mattis v. Stock Yards, 185 Mo. 434; Harff v. Green, 168 Mo. 308; Wytylak v. Coal Co., 188 Mo. 260. (5) Instruction No. 3 given on behalf of plaintiff was clearly misleading. Instruction No. 9, asked on behalf of defendant, was a proper statement of the law and should have been given especially after instruction No. 3 had been given on behalf of plaintiff. (6) Instruction No. 2 which was given by the court on behalf of the defendant properly states the law and this instruction was bottomed upon the testimony of the plaintiff himself undisputed by any other evidence in the case and if the instruction was properly given, the demurrer to the evidence should have been sustained. Every fact in said instruction necessary for the jury to find was admitted by the plaintiff in his testimony. Campbell v. Stanberry, 105 Mo.App. 56.

Wm. H. Wallace, T. B. Wallace and H. S. Williams for respondent.

(1) The switching crew were guilty of negligence in shoving in the car, without warning, against the train on which the plaintiff was coupling air hose. He was working within the time required of him for the performance of that duty; and the switching crew had reason to expect that the air couplers and oilers would be working under the cars of the train at that particular time. 23 Amer. & Eng. Ency. Law, p. 746; Gersley v. Railway, 32 Mo.App. 413; Spotts v. Railway, 111 Mo. 380; Smith v. Fordyce, 190 Mo. 1; Railway v. Dupree, 84 Ark. 377. (2) If the blue light rule (so called) was not observed as to work of oiling and coupling the air hose on the train or track about which plaintiff was working, and had not been so observed for such length of time as to justify the inference that the defendant knew of it, the rule is abrogated and does not absolve the defendant from a liability which would exist in its absence, a dead rule is in legal contemplation, no rule at all. Rutledge v. Railway, 123 Mo. 133; Francis v. Railroad, 127 Mo. 675; Barry v. Railway, 98 Mo. 69. (3) The question whether the blue light rule (so called) was actually in force as to the train or track in question, or had been abrogated by its disuse was a question for the jury. Tullis v. Railroad, 105 F. 554; McNee v. Coburn Co., 170 Mass. 285; Railway v. Dupree, 84 Ark. 377; Feneff v. Railway, 196 Mass. 575; Railway v. Nichols, 2 U. S. App. 369; Brady v. Railroad, 206 Mo. 536. (4) There was evidence to justify the inference that the defective condition of the track was a cause of the injury, and plaintiff's instruction No. 2, submitting this question to the jury was proper. Settle v. Railway, 127 Mo. 336; Soeder v. Railway, 100 Mo. 673; Younge v. Railway, 133 App. 148 et seq.; Kelley v. Railway, 70 Mo. 604; Buesching v. Gas Light Co., 73 Mo. 219. (5) The defendant's instruction No. 5, was properly refused. If the danger arising from the defective condition of the track was not so apparent that a reasonably careful and prudent person would refuse to perform such work at that place the plaintiff was not negligent in continuing in the employment no promise to repair or assurance of safety--was necessary. This question was properly submitted in plaintiff's instruction No. 2. Settle v. Railway, 127 Mo. 336; Huhn v. Railway, 92 Mo. 440; Wendler v. House Furnishing Co., 165 Mo. 527; Pank v. Beef and Provision Co., 159 Mo. 467; Smith v. Kansas City, 125 Mo.App. 150; Devore v. Railroad, 86 Mo.App. 429.

OPINION

JOHNSON, J.

This is a suit by a servant against his master to recover damages for personal injuries alleged to have been caused by negligence of the master. In addition to a general denial the answer interposed defenses of assumed risk and contributory negligence. Plaintiff prevailed in the circuit court and defendant appealed.

The injury occurred shortly after two o'clock in the morning of November 18, 1909, in the yards of defendant in Kansas City where plaintiff was employed as an oiler. He had served in that capacity for about three months and it was his duty to inspect and put in order the oil boxes of cars in outbound trains and also, when necessary, to assist in coupling air hose. He began work at six o'clock in the evening and remained on duty during the night. At the time of his injury he was engaged in inspecting oil boxes and in coupling air hose on a regular freight train scheduled to leave the yards at half past two o'clock. This train was known as No. 137, and was made up in the yards where plaintiff was employed and generally, and on this occasion, on track No. 11. The tracks of this yard run north and south and converge into a main or lead track going south to the main line. The train in question was headed south and it was the duty of the switching crew to collect and assemble the cars, of which the train was to consist, and to complete the work of making up the train thirty minutes before the time of departure, in order that the oilers and air hose inspectors might have thirty minutes in which to do their work. The switching crew were expected to set the train back on its track far enough to prevent it from fouling the lead track after the road engine was backed in and attached to the train. The oilers and air hose inspectors were not expected to begin work on the train until after the work of the switching crew was completed. Defendant had promulgated the following rule for the protection of workman, such as plaintiff, whose duties required them to go between, under and about cars standing in the yards:

"A blue flag by day and a blue light by night, displayed at one or both ends of an engine, car or train or displayed in center of track indicates that workmen are under or about cars or train on that track. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals, without first notifying the workmen."

Plaintiff admits he had been told of this rule by his foreman but claims he had not read it, though, with other rules, it was properly posted by defendant. On this subject plaintiff testified:

"You did know the rule in regard to putting up the blue light? A. Just through him (the foreman), I never saw the rule book.

Q. You saw these little printed circulars passed around, everybody had. A. They showed them to me.

Q. You had never seen them? A. I saw them lying there but I never read them hanging on the file. . . . Q. You knew the blue light was a signal that the men must not put cars on the track? A. Yes, sir. Q. And you knew unless there was a blue light signal or somebody standing there to keep them...