Missouri, K. & T. Ry. Co. v. Collier

• Decision Date: 17 October 1907
• Docket Number: 2,533.
• Citation: 157 F. 347
• Parties: MISSOURI, K. & T. RY. CO. v. COLLIER.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F. 347

MISSOURI, K. & T. RY. CO. v. COLLIER.

No. 2,533.

United States Court of Appeals, Eighth Circuit.

October 17, 1907

On Rehearing, December 23, 1907.

The rules of a railroad company provided that "a signal imperfectly displayed, or the absence of a signal where a signal is usually shown, must be regarded as a stop signal"; that "in all cases of doubt or uncertainty the safe course must be taken and no risks run"; and that "firemen as well as enginemen must watch signals as well as switches carefully, as frequently the first view can be had from the fireman's side." Plaintiff, who was a fireman on a passenger train of such company, on approaching a station at night, at which the train did not stop, observed when from one-half of a mile to a mile distant that there was no light displayed at a switch stand on the engineer's side of the track where there should be a light. He also saw near the station the engine of a freight train facing him with the headlight hooded, as required by the rules when such train was out of the way of an approaching train. He claimed also that some one at or near the station gave a "high ball" signal by moving a lantern up and down, which indicated "proceed" under the rules. The giving of any such signal was denied by the crew of the freight train, and was not authorized by the rules to be given to a train approaching a station. Plaintiff took no action whatever, and did not communicate what he had seen to the engineer, and the train passed upon a siding through the switch, which was open, and ran into a section of the freight train, and in the collision the engineer was killed and plaintiff injured. Held, that in failing to act on the absence of a light at the switch, which under their rules was a stop signal, plaintiff was guilty of contributory negligence, which precluded his recovery from the company that he was not relieved from such charge by the unauthorized high ball signal, if given, nor by the fact that it was also the duty of the engineer to see and obey the stop signal.

This is an action for personal injury, growing, substantially, out of the following state of facts:

The defendant in error, hereinafter for convenience designated the plaintiff, was in the employ of the plaintiff in error hereinafter for convenience designated the defendant, as fireman on passenger train known as the 'Katy Flyer.' He had been in the employ of the defendant as fireman for about 15 months prior to the accident, and had for a considerable time prior to this service worked as a fireman on the Missouri Pacific Railroad. The accident occasioning the injury in question occurred at Lewis Station, in Henry county, Mo., at 1:28 o'clock a.m. of the night of September 23, 1904. The train was coming from the south going north, and was due to pass this station at about 12 o'clock that night. This train was not scheduled to stop at that station. Its usual time was fast, running from 40 to 45 miles an hour.

An order had been issued the evening of that night, for the information of other trains and crews on the road, that the 'Flyer' would be an hour and a half late at Lewis Station, and for all other crews to govern themselves accordingly. On that night there was a south-bound freight train of the defendant running so as to meet said 'Flyer' at said station. Arriving at the station some time prior to the arrival of the 'Flyer,' the freight train had to shift from the main to the side track to give free passage on the main track. On the west side of the main track was what was known as the 'passing' track, 2,334 feet between the head blocking switches. On the east side of the main track, nearer to the south end of the passing track, was the depot building. On the east side of the depot was another track, diverging from the main track, known as the 'house' track, which is about 1,430 feet between the head blocks. The freight train passed on to the passing track. It became evident to the conductor, after taking observations from the top of the cars, that there was not sufficient space on this siding to stand clear of the main track at both ends, and he would therefore have to pass the south switch in order to clear the north switch with the rear end of said freight train. Accordingly he notified the head brakeman, named McCarty, to open the south switch to allow the engine and the front part of the train, consisting of seven cars, to pass out on to the main line, which McCarty promptly did. To meet this situation the engine and seven cars were cut off from the train, which left the balance of the train clear on the passing track. After the engine and seven cars had passed the south switch out on to the main track, the plan was to back these detached cars with the engine onto the 'house' track. To accomplish this movement it was necessary for McCarty to throw the south switch to permit the seven cars and the engine to back through said switch north on the main track. This he did, and signaled the engineer when accomplished. The switch at the junction of the main track and the house track stood about 300 feet north of the south switch connecting the main track and the passing track, over which the seven cars and engine had just passed. The conductor of the freight train attended to the throwing of this house track switch so as to admit the cars and engine thereon. As soon as the seven cars and engine had passed onto the house track, the conductor threw the switch over which they had just passed so as to make a clear main track. As these cars backed through the south switch McCarty, standing some 10 or more feet to the north of it, discovered that there was a hot box on the rear of the seventh car of this short train, and he immediately started toward the conductor at the switch of the house track to inform him of this fact; but on account of a ditch running parallel with the railroad track the walking was difficult, and as soon as the engine in backing had passed him he immediately followed it up on the track, within 10 feet of the engine as it backed, according to his testimony, until he reached the conductor, and informed him about the hot box.

When this short train had thus passed backward and northward through the south switch onto the main track, there was no occasion for setting that switch for the free passage of the north-bound passenger train; and his testimony is that he never touched this switch after setting it for the movement of the backing of the engine and seven cars, and was not at it after he so followed up the backing train. In this he is confirmed by the fireman on the engine on the backing train, who testified that he saw McCarty going forward toward the house track switch as the engine backed north of the south switch; and the conductor confirms him in making the report to him of the hot box immediately after the engine passed through the house track switch. The conductor and the other brakeman on this car with McCarty were engaged, after the train stopped, in and about rectifying the hot box. The conductor and the other brakemen being engaged on the car, McCarty was directed to go forward to the engineer and inform him of the situation, and not to move the train until he received the signal therefor. As McCarty was thus passing to deliver this message to the engineer, the whistle of the 'Flyer,' coming from the south for this station, was heard, and it reached the south switch and crashed into the south end of the freight train standing on the passing track about the time McCarty reached the engineer with his message. The engine and one car at least were derailed on the passing track, and others of the north-bound passenger train were derailed on the main track, furnishing evidence that the south switch was so adjusted as to admit the engine onto the passing track. As a result of that collision the engineer on the passenger train was killed, and the fireman (Henson Collier, the defendant in error) received personal injuries of a more or less serious character. When the engine and seven cars were left standing on the house track, the engine, being at the south end of said cars, was hooded, as required by the rules of the company.

While said passenger train was so approaching the south switch the engineer and fireman of the freight train were at their posts on the engine, and no lanterns were being used by any of the crew of the freight train, according to their positive testimony, except as they had been employed in the movements of switching the freight train, and in and about the repairs being made on said hot box. And their testimony was that none of them were on the main track after they thus passed onto the house track, and none of them employed a lantern on the main track thereafter for any purpose. The evidence further tended to show that after the accident the south switch was found to be thrown and locked for the passing track.

In order to show a condition existing at the time, in and about Lewis Station, from which it might be as reasonably inferred that the switch had been tampered with and so set after McCarty left it as that McCarty himself so re-adjusted it the defendant introduced evidence tending to show that for several weeks prior to this accident there was a general strike of telegraph operators along the line of the defendant's railroad, and that as an outgrowth thereof considerable difficulties and interruptions of the transaction of defendant's business had occurred at Lewis Station; that the wires had been grounded so as to confuse and interfere with train orders; that trains had been held at that station for considerable time, not being able to depart therefrom until the men could get in telephonic communication with the train dispatcher at Sedalia, Mo.; that for...