Missouri v. Merrill

• Decision Date: 07 April 1900
• Docket Number: 11,509,11,600
• Citation: 61 Kan. 671,60 P. 819
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al. v. L. T. MERRILL. THE KANSAS CITY SUBURBAN BELT RAILROAD COMPANY v. L. T. MERRILL et al

60 P. 819

61 Kan. 671

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al. v. L. T. MERRILL.

THE KANSAS CITY SUBURBAN BELT RAILROAD COMPANY v. L. T. MERRILL et al

Nos. 11,509, 11,600

Supreme Court of Kansas

April 7, 1900

Decided January, 1900.

Error from Wyandotte court of common pleas; W. G. HOLT, judge.

STATEMENT.

THIS was an action to recover damages for personal injuries brought by L. T. Merrill. Briefly stated, the facts are as follows: At the time of the injury he was in the employ of the Chicago Great Western Railway Company in the capacity of switchman. A coal-car was loaded with iron pipe by the Missouri, Kansas & Texas Railway Company in St. Louis for shipment to St. Joseph, Mo. There were sideboards and end-gates on the car a little more than three feet high. The sideboards were stationary, but the end-gates were fastened to the floor of the car with hinges so that they would lie flat when the car was not loaded. There were no hooks or eye-bolts on either end-gate and no means of fastening them in place. Cleats were nailed on the inside of the end-gates fastened to the sideboards of the car, against which the end-gates rested when in an upright position. When the car was loaded the iron pipes came up to a level with the top of the sides and end-gates. Upon the arrival of this car in Kansas City it was inspected by an authorized inspector of the Missouri, Kansas & Texas railway. It was then delivered to the Suburban Belt railway, to be delivered to the Chicago Great Western railway. The Suburban Belt company inspected the car and delivered it, with about twenty-five others, to the Chicago Great Western company for transportation to St. Joseph, Mo. The latter company, in making up a train in its yards at Kansas City, Kan., was engaged in switching this with other cars. It, with several others, was attached to an engine backing in a southeasterly direction. While the cars were moving at a rate of speed between four and five miles an hour, plaintiff below started toward the south end of the moving cars for the purpose of getting off and throwing a switch. It was necessary for him to go over and across this coal-car, which was between two box cars. The cars were on a curve in the yards. He walked on top of the iron pipes, and, standing upon the end-gate attempted to reach an iron ladder on the box car immediately south of and attached to the coal-car. The ladder was on the side but near to the end of the box car. There was a distance of about four feet between the end-gate of the coal-car and the ladder of the box car. He stood upon the end-gate, and in his efforts to reach or jump so that he might catch hold of the ladder, the thrust given by his body against the end-gate caused it to topple over several inches, by reason of which he was thrown under the train, run over, and injured. It appeared that the weight of the load had sprung the sides of the coal-car outward so that the cleats against the end-gate did not perform the service intended in holding the same in a rigid position. The ends of the iron pipes did not rest against the end-gate. There was a space of about fifteen inches between the inside of the end-gate and the ends of the pipes; and outside the end-gate the bottom of the car projected, leaving a platform of from eighteen inches to two feet. The inspector of the Chicago Great Western company examined the car and placed a red card upon it, indicating that it needed repairs There was no evidence, however, that Merrill saw this card.

The acts of negligence charged against defendants below were a failure upon the part of the Missouri, Kansas & Texas and Suburban Belt companies to place the car in a reasonably safe condition before delivering it to the connecting carrier that the Missouri, Kansas & Texas company carelessly loaded it with iron pipe while it was in a defective and dangerous condition and delivered it to the Suburban Belt company, and that the latter carelessly delivered it to the Chicago Great Western company while it was in the same dangerous and defective condition.

There was a verdict and judgment for the plaintiff below against the Missouri, Kansas & Texas Railway Company and the Kansas City Suburban Belt Railroad Company jointly.

Judgment reversed.

T. N. Sedgwick, Silas Porter, and J. L. Denison, for M. K. & T. Rly. Co.

Trimble & Braley, John A. Eaton, and O. L. Miller, for K. C. S. B. Rld. Co.

Angevine & Cubbison, for L. T. Merrill.

OPINION

SMITH, J.:

Plaintiffs in error deny the right of plaintiff below to recover at all under the petition. It is insisted that, if entitled to damages, he must look to the Chicago Great Western Railway Company, by which he was employed at the time of the accident.

We cannot agree with them in the position taken. When the iron pipe was received by the Missouri, Kansas & Texas company at St. Louis as freight for transportation to St. Joseph, Mo., it was contemplated that the car in which it was loaded should be delivered at Kansas City to a connecting carrier, for the reason that the receiving company had no line from Kansas City to the place of destination. It was known also that connecting carriers employ switchmen, and that they are necessary to the work of making up trains. With this knowledge, it was the duty of both the plaintiffs in error to provide a car which would be reasonably safe for the service to be performed and for employees of connecting lines to handle, to the end that freight might be expeditiously carried to its destination. The first carrier owed a duty to the employees of the second, and both to the third, to the extent that the car transported should be in such reasonable repair that in switching it no harm should result to the employees of the latter railroad company in performing such work. While no proof was made showing what route the car was to take from Kansas City to St. Joseph, yet it was intended that it should be forwarded over some one of the lines running between the two cities. It was never contemplated that it should be unloaded at Kansas City and the contents transferred to a car belonging to a connecting line. This would be an ex. pensive and unusual practice, contrary to modern methods of handling such freight.

Negligence on the part of the Chicago Great Western Railway Company will not excuse the plaintiffs in error either for their failure to inspect, or, having inspected the car, permitting it to be delivered to a connecting line in a condition which might be dangerous to switchmen and other employees engaged in the practical part of the business of railway transportation. The question is whether plaintiffs in error were negligent. This is not determined by a showing that another company was equally or more careless. ( Pennsylvania Railroad Co. v. Snyder, 55 Ohio St. 342, 45 N.E. 559; Moon v. Northern Pacific R. Co., 46 Minn. 106, 48 N.W. 679; Savannah F. & W. Railway Co. v. Booth, 98 Ga. 20, 25 S.E. 928; Horne v. Meakin, 115 Mass. 326; Heaven v. Pender, 11 L. R., B. Div. 503; Thrussell v. Handyside & Co., 20 L. R., Q. B. Div. 359; Elliott v. Hall, 15 L. R., Q. B. Div. 315.) Neglect of such duty cannot be justified or excused on the ground that no contractual relation existed between the person injured and the parties guilty of the negligent acts. (Garnett v. Phoenix Bridge Co., 98 F. 192.) Railway companies are required to receive and transport freight-cars offered for that purpose which are of a gauge adapted to their lines. The necessities of commerce demand this. (Michigan Central R. R. Co. v. Smithson, 45 Mich. 212, 7 N.W. 791; P. & P. U. Ry. Co. v. C. R. I. & P. Ry. Co., 109 Ill. 135; Louisville and Nashville Railroad Co. v. Boland, 96 Fla. 626, 11 So. 667.)

Under the facts developed at the trial, we do not feel justified in determining as a matter of law that the conduct of the defendant in error in his effort to go from the coal-car to the box car in the manner he did was negligent to a degree preventing a recovery. The cars were in motion. He had a duty to perform, which required his passing from one car to another. This involved a climbing up from a flat to a box car and going over the space between the two where they were coupled together. The end-gate could have been held up securely in a rigid position by the use of hooks and eye-bolts, which the proof showed are usually employed for that purpose. The cleats used were an imperfect substitute for such appliances. It appeared from the testimony that these cleats were rendered ineffective for the purpose intended by the pressure of the load pushing the sideboards away from the ends of the end-gate and permitting the latter to fall inward past the cleats. While the attempt of plaintiff below, by standing on the end-gate, to reach over to the ladder of the box car on the outside of the curve, a distance of four feet, seems to us to be a careless manner of crossing, yet we think it would be an unwarranted interference with the province of the jury so to declare as a matter of law, in view of the duties the defendant in error was called upon to perform, considering his surroundings at the time.

Plaintiffs in error contend that there were a safe and an unsafe way of going from the coal-car to the box car, and that Merrill adopted the latter. It does not stand out clear from the testimony in the record that the way which plaintiffs in error would have had Merrill make the crossing was the safer one. No instruction was asked by defendants below, nor any given, to the effect that, if there were a safe and an unsafe way of going from the one car to the other, plaintiff below must employ the former. While we...