Monk v. Wabash Railroad Co.
| Decision Date | 11 November 1912 |
| Citation | 150 S.W. 1083,166 Mo.App. 692 |
| Parties | LEONARD MONK, Appellant and Respondent, v. WABASH RAILROAD COMPANY, Respondent and Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 166 Mo.App. 692 at 700.
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
TWO CASES. NO. 10384 REVERSED AND REMANDED (with directions). No 10182 AFFIRMED.
NO 10384 REVERSED AND REMANDED (with directions). No. 10182 AFFIRMED.
J. L Minnis and Higbee & Mills for appellant and respondent.
Campbell & Ellison and Weatherby & Frank for respondent and appellant.
--Plaintiff was an employee of the defendant railway as a section man under the immediate direction of a foreman. He was seriously injured, and, charging the injury to the negligence of defendant's servants, brought this action for damages. The trial court sustained a demurrer to the evidence and rendered judgment for the defendant, whereupon plaintiff appealed.
It appears from the record that there had been a former trial of the cause, in which plaintiff obtained a verdict for ten thousand dollars. A motion for new trial filed by defendant was sustained for the following reasons:
Plaintiff prepared his bill of exceptions, which was duly signed by the judge and filed. Afterwards it was agreed between the parties that there should be a new trial by the court without a jury and the evidence should be that taken on the former trial as preserved in the bill of exceptions. That bill of exceptions was submitted to the court by the parties and defendant offered, and the court gave, a peremptory instruction declaring "that under the pleadings and evidence the plaintiff cannot recover." Judgment was then entered for defendant and plaintiff appealed to this court.
It is a fundamental rule that in passing on a demurrer to the evidence we must assume the truth of the testimony in behalf of the defeated party and allow all reasonable inferences which may be drawn therefrom in his favor. It is from that standpoint we must consider the case. [Knorpp v. Wagner, 195 Mo. 637, 93 S.W. 961; Pauck v. St. Louis Beef & Prov. Co., 159 Mo. 467; Wilson v. Board, 63 Mo. 137.]
It is admitted by defendant that plaintiff was in its employment as a section man and that on the night of his injury he was sent by his foreman before nine o'clock at night, to a bad or dangerous place on the track near a bridge about 200 feet long, to signal trains, a passenger train being due at that hour. It is conceded that he took with him a lantern and a raincoat. It is likewise conceded that he was injured by being run over by defendant's train and his arm cut off, besides other injuries of less consequence. Plaintiff charges negligence on the part of defendant's servants in charge of the train, and denies contributory negligence. Defendant's theory of the cause of his injury is that he was asleep on the track with his coat for a pillow. This theory is not said to be supported by any direct evidence, but is in the nature of a conclusion drawn by counsel as the most reasonable way to account for the injury conceded to have been inflicted.
The bad track was at the north end of a bridge, about three-fourths of a mile north of the town of Greentop, in Schuyler county, and was caused by the embankment having slipped to such an extent as to make necessary great care and caution in trains passing over it; and that was the cause of plaintiff being sent to stand at the place and signal an on-coming train. On account of rains the condition had existed for some little time and train crews had first been ordered to slow down to ten miles an hour when passing over it, but afterwards that order was changed to five miles. Notwithstanding the order, it was deemed prudent to station a man at the place to signal night trains.
Plaintiff testified that he was directed to take his position at the north end of the bridge; that he could have signalled by standing 150 feet north of the bridge, but his orders were to take position at the end of the bridge. Asked on cross-examination if he could not have signalled from the south end of the bridge, he answered: "Yes, I could if the boss had put me there." Literal compliance with the order would put him on the track. But, aside from that, the condition there made it necessary that he place himself on the track, for the embankment had slid off on one side up to the end of the ties and the slope on the other side was such as to make it impractical to stand off of the track. He testified that when the train came around a curve, the track was straight and he gave the engineer the slow signal by slowly raising his lantern up and down. It was the duty of the engineer to answer or respond to the signal by two sharp blasts of the whistle, but he did not do so and plaintiff continued at his place signalling. He stated that at night, looking straight down the track into the headlight of an approaching engine, one cannot tell whether it is coming fast or slow, and that he did not know it was going at a rapid rate until it struck the south end of the bridge, when the rumble or noise, such as is made on a bridge, warned him of his danger, and he immediately attempted to get off the track, when he slipped and fell between the rails and quickly endeavored to throw himself outside by turning over the west rail, but before he was completely outside, the wheel of the engine caught his arm and cut it off. As we have said, plaintiff testified he could not tell by looking straight down the track that the train was running rapidly, but supposed it would be coming slow as the orders were to run slow, but he further stated the reason he remained on the track was that up to the time the engine came upon the south end of the bridge and made the rumbling noise, he "kept thinking that he (the engineer) would answer" the signal.
Plaintiff walked to the nearest house and was afterwards taken to a hospital. Persons who soon heard of the injury went immediately to the place. Plaintiff's overcoat was found eight or ten feet north of the bridge his cap six or eight feet north of the coat, and the lantern at the north end, while his severed hand and elbow were found about thirty-five feet north of the coat, one between the rails and the other outside.
The judgment of witnesses for plaintiff differed as to the speed of the train. Plaintiff himself stated that he thought it came upon him at fifteen or twenty miles an hour. Other witnesses put it much faster and yet the conductor of the train (introduced by plaintiff) said it was about five miles; and so the engineer and fireman stated. There was evidence that the ordinary rate of speed at that place, when the track was in condition, was fifty or sixty miles an hour, and witnesses who observed this train that night from their houses said it was running at its usual rapid rate until it got as far as the middle of the bridge when it seemed to slacken.
We think it clear it should not have been said, as a matter of law, that no case was made for plaintiff. As already stated, we must accept the testimony in his behalf, including his own, as true. From that standpoint, he was standing in obedience to defendant's order, at the north end of the bridge where there was a danger-ous place in the embankment of the track made by recent rains, with directions to notify the train by signal to slow down the speed to five miles an hour. The engineer of the train himself had this order, but it was a wise precaution to also have a flagman at the place, that no mistake could lead to serious disaster. He saw the approaching train down a straight track, near a quarter of a mile from the bridge, and began to give the proper signal by moving his lantern up and down. It was the duty of the engineer to notify him that he saw the signal by two short blasts of the whistle, and he did not do so, which neglect caused plaintiff to remain at his post continuing the signal. The question may suggest itself as to just when plaintiff, as a prudent man, should have ceased giving the signal which he knew was unanswered, and leave the track. We think he gives reasonable account of his conduct, certainly good enough to be passed upon as a question of fact. He could not tell by looking down the track into the headlight of the engine, that it was coming at a greater rate of speed than five miles an hour, the rate named in the slow order, and he could reasonably suppose it was not; at least he was entitled to have the character of his action, in all the circumstances, passed upon as a matter of fact. He was only made to realize that the train was approaching at a rapid rate, as it got upon the bridge, when he immediately endeavored, to save himself by clearing the track, when he unfortunately fell and was struck before he could roll entirely over the rail. There was evidence that the engineer had been over the track, knew its condition and expected a flagman to be there. It was therefore great carelessness in him to run at the speed stated by plaintiff and other witnesses. There is every reasonable inference that but for such speed plaintiff could have fully cleared the track.
Turning to the action and conduct of defendant's train servants we find (from the standpoint of the evidence for pla...
To continue reading
Request your trial