Mosley v. Thompson

• Decision Date: 10 September 1940
• Docket Number: No. 37023.,No. 36109.,36109.,37023.
• Citation: 143 S.W.2d 310
• Parties: MOSLEY v. THOMPSON.
• Court: Missouri Supreme Court

143 S.W.2d 310

MOSLEY v. THOMPSON.

No. 36109.

No. 37023.

Supreme Court of Missouri, Division No. 2.

September 10, 1940.

Rehearing Denied September 27, 1940.

Appeals from Circuit Court, Newton County; Emory E. Smith, Judge.

Action by Leon Mosley against Guy A. Thompson, as trustee of the Missouri Pacific Railroad Company, a corporation, for personal injuries suffered when struck by railroad car. From an adverse judgment, defendant appeals.

Affirmed.

Thos. J. Cole, of St. Louis, Leo H. Johnson, of Neosho, and David E. Blair, of Joplin, for appellant.

Sizer & Myers, of Monett, for respondent.

BOHLING, Commissioner.

Leon Mosley recovered a judgment of $8,250 against Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a corporation, for personal injuries sustained at Van Buren, Arkansas. Defendant appealed.

Appellant contends, briefly put, that respondent, being guilty of negligence equal to or greater than the negligence, if any, of appellant's employees, failed to make a case under the Arkansas comparative negligence statute; and that there was no sufficient evidence upon which to submit the issue involving negligence of appellant's employees under the Arkansas "constant lookout" statute. The applicability of the following Arkansas statutes is not questioned:

"In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence." Sec. 11153, Pope's Ark.Dig.1937.

"All railroads which are now or may be hereafter built and operated in whole or in part in this State shall be responsible for all damages to persons and property done or caused by the running of trains in this State." Sec. 11138, Pope's Ark.Dig.1937.

"It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed." Sec. 11144, Pope's Ark.Dig.1937.

Appellant's tracks extend east and west in its Van Buren yard. A north and south pathway crosses these tracks. It has been used by the public for a number of years. Appellant admitted notice of this pathway and its user. The yard tracks are straight for a distance of a quarter of a mile or more on either side of the pathway. Respondent is a negro, a cook, and was thirty-three years of age at the time of the accident. He was wearing shoes cut out around the toes, testifying such shoes were generally worn around kitchens to keep one's feet from sweating and becoming sore. Between three and four p. m. on July 4, 1937, respondent was proceeding north over the pathway. He crossed appellant's southernmost track and, feeling something in his shoe or shoes, stopped at the second track. He looked both ways and listened. On said second track to the west were some cabooses, and to the east was a string of ten to fifteen refrigerator cars. There was no engine attached to the refrigerator cars. In fact, he saw no engine, heard no bell or whistle, and observed no switching operations. He sat down in the pathway on the end of a cross-tie, about eighteen inches from the south rail of said second track and four to six feet from the west end of the cars east of him. He removed his left shoe, shaking out the sand and gravel and straightening his sock, and then his right shoe. While lacing his right shoe (respondent thought he had been there five or six minutes), the stirrup of the westernmost car struck his left shoulder, knocked him around to the right, tearing his shirt, and with respondent trying to catch himself, the wheels passed over his right hand and the car otherwise injured him. He straightened up and looked east. There were no obstructions to the view along the south of the string of cars. He saw a man in the window of an engine at the east end of the string of cars looking toward him, and a brakeman or switchman or someone standing just opposite the engine cab also looking toward him. There was no one on the car which struck him. He heard no bell or whistle. The car striking him moved about two-thirds of a car length to the west of him before stopping. Such is respondent's version of the accident. No issue is presented respecting the amount of the verdict and we do not detail the injuries.

Appellant's evidence was to the effect that the accident occurred on Track Two; that there are tracks known as Old Track Two and New Track Two — New Track Two being an extension to the east of Old Track Two. Near this track is a "switch shanty." There were twelve cars of a pile driving outfit on New Track Two east of the switch shanty. The engine headed in to put these cars in a train and after they "drug" the cars out, appellant's employees first saw respondent sitting on some ties. They testified respondent told them he had been asleep under the cars and a car ran over his hand. Some of appellant's employees found some mashed flesh, etc., about one hundred eighty feet east of the switch shanty, and the distance from that point to the pathway west of the switch shanty, where respondent testified he was injured, was placed at fifteen car lengths — the length of a car being approximately forty feet. While appellant's employees testified they did not see respondent prior to the accident, on cross-examination of several witnesses it was established that one in the position respondent testified he was in could have been observed by a switchman south of the engine on the ground or standing on the south part of the foot board of the engine. The switchman who made the coupling with the pile driving outfit testified he was on the north, the engineer's side of the engine; that he remained on the "foot board" of the engine when they made that move; that he looked down the north side of the cars; that there was no one at the west end of the cars; and that he did not look down the south side of the cars. The fireman testified that before they made the coupling he was looking to the west and didn't see anyone.

Was respondent guilty of negligence equal to or greater than that of appellant as a matter of law? Appellant cites Missouri Pac. R. Co. v. Sanders, 193 Ark. 1099, 106 S.W.2d 182, and Missouri Pac. R. Co. v. Brewer, 193 Ark. 754, 102 S.W.2d 538. These cases involved collisions between an automobile and a train on highway-railroad grade intersections.

The Sanders case reversed plaintiff's judgment. The railroad's depot interrupted the view of the automobile on its journey to the intersection. The engineer saw the automobile before the depot obstructed his view, but it was then in a place of safety. Speaking to the point where the automobile again came into view, that is, when it was within eighteen or twenty feet of the track, the court said (193 Ark. loc. cit. 1104, 106 S.W.2d loc. cit. 184[1], respectively): "The fact appears to be clear that no lookout by the operatives of the train would have disclosed to them the danger to the car and its occupants except at a time...