McQuitty v. Kansas City Southern Ry. Co.
| Citation | 194 S.W. 888,196 Mo.App. 450 |
| Parties | SARAH McQUITTY, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Decision Date | 23 June 1917 |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court.--Hon. D. E. Blair, Judge.
Judgment affirmed.
Cyrus Crane for appellant.
Robert Sheppard for respondent.
The plaintiff's husband, at the time he received the injuries causing his death, was both engineer and fireman of a stationary engine used in loading gravel on cars for use on defendant's road. Deceased was in the employ of the gravel company. The gravel plant, located near Noel Missouri, was reached by a switch about 1000 feet long connected with defendant's main line and extending to and along the bank of Elk River where was located the machinery for loading the gravel into the cars. The hoister, near the river bank, was placed on a concrete foundation seven or eight feet high and the engine for operating same was also located there. The boiler, however, was located on the ground so that the deceased, in passing from the engine to the boiler or vice versa, came down, or up, a short flight of steps and then passed over an intervening space of some thirty feet to the front end of the boiler. This thirty foot space was the length of the concrete foundation forming a wall with the boiler at one end and the steps leading up to the engine and hoister at the other. Across this space from the boiler to the steps and parallel with the concrete wall the deceased passed frequently in the course of his work. A spur track, called the coal track branched off from the main or gravel switch and extended to and ended at right angles with the concrete wall, striking same at or about the middle of this space between the boiler and steps leading to the engine and hoister. In passing, therefore, from the boiler to the engine or steps leading to same, or vice versa, the deceased passed over the end of this spur track where same butted against the concrete foundation wall. Here deceased met his death by being caught and crushed between this wall and a freight car shoved against same on this spur track. The plaintiff recovered judgment for damages and defendant appeals.
The negligence alleged is that the defendant suddenly and without warning shoved a freight car against this wall and caught and crushed the deceased as he was passing along the wall and over the end of the spur track in going from the boiler to the engine. The defense is a denial of the negligence and a plea of contributory negligence in that deceased attempted to pass through the narrow space between the end of the then standing car and the wall without looking or taking heed of the approaching engine.
The first error assigned is that the court should have declared the deceased's conduct in this respect contributory negligence as a matter of law and directed a verdict for the defendant instead of submitting the question of contributory negligence to the jury. The other error relates to the giving of an instruction on contributory negligence. These alleged errors are closely connected and may be considered together.
The evidence favorable to plaintiff shows that this spur track or coal track was not used, except perhaps on rare occasions, to set in gravel cars, but was used only for cars of merchandise, principally coal, used by the gravel company and on which the gravel company paid freight. Such cars were billed in and out by the defendant's agent at Noel. The gravel cars were handled on the long gravel track by defendant's work train and, as the gravel was used by defendant for ballast, no freight was paid thereon and the local agent had nothing to do with their shipment. This spur track, some 270 feet long from its intersection with the gravel track to its termination at and against the concrete wall, was used only at comparatively infrequent intervals and the cars taken in and out thereon were handled by the local freight crew and engine instead of the work train which handled the gravel cars. The accident in question was caused, however, by the engine of the work train attempting to take out this car of merchandise which had been loaded and billed out by the gravel company. This car had been set in by the local freight some two or three days previous to the accident and was loaded by the gravel company the day previous and billed out for shipment to Joplin on that day. This car was not, however, taken out by the north-bound local freight as was expected by the deceased and others, including the foreman of the gravel company, and that train had gone on north and no train which, in the usual course of events, would handle this car would be there for a considerable time. The deceased made a remark to this effect while eating his noon lunch a short time after the local freight had passed by and shortly before the accident. It is further shown that, the local freight being behind time, the conductor thereof made an arrangement with the crew of the work train to set out this car at a convenient place on the main line to be picked up by the local freight on its next trip. Neither the gravel company nor the deceased had any knowledge of this arrangement. It is not shown whether the deceased knew that the work train was moving gravel cars on the gravel switch or not, as it was so doing only fifteen to twenty minutes before this accident, and some of the other workman observed it before it came in on this coal track and some did not. In any event the evidence is ample to show that about the time the work train engine started in on this spur track the deceased was at work about the boiler; that the merchandise car in question was standing on the spur track with the end about four feet from the wall; that the work train engine came slightly down grade, without any warning of bell or whistle and with but little or no noise; that it attempted to couple to this standing car and, failing to make a coupling, shoved it against the wall catching deceased as he was attempting to pass through the narrow opening.
It was also shown that there was a coal bin eight or nine feet high built along the spur track only four feet from the rail and some thirty feet long. This coal bin began seventeen feet from the foundation wall and front end of the boiler in line therewith. As the deceased came from the boiler toward the opening between the car and the wall this coal bin obstructed his view toward the coming engine until he reached a point where he could look through the narrow space between the coal bin and the loaded car. This space was less than two feet wide, making allowance for the projection of the car beyond the rail. Though this narrow space was the only place at which deceased, by looking, could have seen the coming engine. There was a curve in the spur track but it is possible and perhaps probable that, had deceased looked through this narrow space, the engine was close enough to the standing car to have been seen before the deceased came into the fatal danger.
The defendant invokes the well known rule of law that a railroad track is itself a warning of danger and, though an approaching train fails to give other warnings required by positive law or the facts of the particular case, yet one who, without listening or looking, heedlessly attempts to cross such track in front of such negligently operated train when to look or listen would make known the peril in time to avoid...
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