McKee v. Chicago, B. & Q. R. Co.

• Decision Date: 01 December 1902
• Court: Missouri Court of Appeals
• Parties: McKEE v. CHICAGO, B. & Q. R. CO.

70 S.W. 922

96 Mo. App. 671

McKEE v. CHICAGO, B. & Q. R. CO.

Court of Appeals at Kansas City, Missouri.

December 1, 1902.

INJURY TO EMPLOYÉS — ASSUMPTION OF RISK.

1. Notwithstanding a general custom of ringing a bell on the starting of a train, this not being adopted as a special warning to employés attempting to pass over it, an employé in a switch yard, who, in going to a vault provided for such employés, attempts to climb over couplings of cars in a train standing with engine attached, ready to start, assumes the risk.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by William H. McKee against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action for negligence. Plaintiff sues to recover damages for injuries alleged to have been received May 2, 1901, while in the employ of defendant at its switch yards in the city of St. Joseph, Mo. The allegations of the petition are, substantially, that there were numerous switch tracks in said yard, used in the handling of defendant's freight business, in which defendant employed a large number of men; that its freight depot was on the east side of said tracks; that on the west side thereof the defendant had provided, for the use of its workmen, a privy vault, which, in order to reach, they were compelled to cross said tracks, and that it was their custom so to do, — all of which was well known to defendant; that defendant's freight trains were constantly passing to and fro through said yards and over said tracks, so that it became dangerous for said workmen to pass from said yard to said vault on the west side as aforesaid; that defendant, in order to render it less dangerous to them while passing over said tracks to said vault, adopted certain signals, such as the ringing of bells and other means, to be given when such freight trains were to be moved, so as to give its employés notice of such movements; that on said May 2, 1901, while so employed, it became necessary for plaintiff to use said vault, and, while he was so crossing said tracks, on one of which was a freight train, and while he was in the act of climbing over the coupling of two of the cars of said train, defendant negligently, without notice, and in violation of a certain ordinance of said city of St. Joseph, caused said train to be moved, when it knew, or by the exercise of reasonable care might have known, of his danger; that plaintiff, by said movement of the train, was thrown from his balance and injured; and that at the time he was so injured he was relying upon the defendant to give the customary signal of the intended movement of said train. The answer consisted of a general denial and allegations to the effect that the plaintiff was guilty of contributory negligence and had assumed the risk. The trial resulted in a verdict and judgment for the plaintiff, from which defendant appealed.

O. M. Spencer and H. J. Nelson, for appellant. Vories & Vories, for respondent.

BROADDUS, J. (after stating the facts).

On the trial a plat was introduced showing the location of the yards and tracks in question, by which it appears that immediately west of and parallel with the switch tracks were two tracks designated as the "East Main Line" and the "West Main Line"; the east track being used for north-bound freight and passenger trains, and the west track for south-bound trains. The train by which plaintiff was injured was standing on the track designated as the "East Main Line." It was proved that plaintiff was injured at the time and place stated in his petition. There was evidence tending to show that there was no signal given of the starting of said train at said time. It was also shown that it was the custom of the employés to cross said tracks in going to said vault, and that at times they crawled over the couplings between the freight cars standing on the tracks with engines attached ready to move. It was also shown that it was the custom of the defendant, before starting the movement of its freight trains, to give a signal by the ringing of bells of such intended movement; but it was not shown that such signals were given for any special purpose; only that it was customary to give them. The ordinance of the city of St. Joseph mentioned in the petition was not read in evidence. It was in proof that sometimes an engine was used in the rear to push freight trains going north, as that part of the track was an upgrade. But when plaintiff made the attempt to go to the vault in question he says he looked, and saw no engine attached to the rear end of the train, and that he could not see to the north or front end. There was, however, an engine at each end, although plaintiff further testified that as he did not think there was such an engine at the rear end, and so did not rely on a signal to be given. But under all the circumstances, and the position of the train ready for a departure north, he must have known there was a locomotive at the front end, and that, consequently, the train was likely to be moved at any time. On the conclusion of plaintiff's evidence the defendant submitted a demurrer to his case, which the court overruled. At the close of the case the court gave four instructions at the instance of plaintiff, and over the objections of the defendant. The defendant asked 18 instructions, of which the court gave nine and refused the remainder. The contention of the defendant is that the petition did not state a cause of action, that the allegations thereof are not sustained by the evidence, and that the court committed numerous errors in giving plaintiff's instructions and in refusing those offered and not given for the defendant. The theory of the plaintiff is that the location by the defendant of the vault aforesaid across the tracks from where its employés were engaged was not only an invitation for them to cross the tracks in the use of said vault, but that they...