Murphy v. Wabash Railroad Company

• Decision Date: 25 March 1893
• Parties: Murphy v. The Wabash Railroad Company, Appellant
• Court: Missouri Supreme Court

21 S.W. 862

115 Mo. 111

Murphy v. The Wabash Railroad Company, Appellant

Supreme Court of Missouri, First Division

March 25, 1893

Appeal from Randolph Circuit Court. -- Hon. J. A. Hockaday, Judge.

Affirmed.

F. W Lehmann and G. S. Grover for appellant.

(1) There was no proof of negligence on the part of defendant. Wood's Master & Servant, sec. 329; Burke v Withrow, 98 N.Y. 565; Railroad v. Lonergan, 118 Ill. 48; Bowen v. Railroad, 95 Mo. 268; Bohn v Railroad, 106 Mo. 429; Railroad v. Stewart, 13 Lea (Tenn.), 432; Smith v. Railroad, 69 Mo. 32; Railroad v. Coleman, 28 Mich. 440; Railroad v. Judson, 34 Mich. 506; Clark v. Railroad, Scotch Sess. Cases [4 Series] 273; Pequigno v. Railroad, 12 Am. & Eng. Railroad Cases, 210; Sjogren v. Hall, 53 Mich. 274; City v. Zimmerman, 95 Pa. St. 287; Crafter v. Railroad, L. R. 1 C. P. 300; Morris v. Railroad, 9 Cent. Rep. 288. (2) The evidence shows affirmatively that the accident was due to the plaintiff's own negligence in unnecessarily exposing himself to peril. McKee v. Railroad, 50 N.W. 209. (3) The plaintiff assumed the risk of injury when he proceeded to tighten the coupling in the manner he did. Hulett v. Railroad, 67 Mo. 239; Rains v. Railroad, 71 Mo. 164. (4) The court erred in admitting testimony of the movements of the other sections of the plaintiff's train.

Alexander H. Waller for respondent.

(1) Respondent was entitled to a safe and unobstructed track, and appellant owed him this duty; and to this end appellant was bound to place its fences and other structures used in connection with its road at a reasonably safe distance from the track so as not to be dangerous to respondent or to any of its employes operating its trains whilst discharging any of their duties, and a failure to do so is negligence. Somers v. Railroad, 9 S.W. (Tex.) 741; Johnson v. Railroad, 41 Am. & Eng. Railroad Cases (Minn.), 293; Hall v. Railroad, 16 F. 744; Railroad v. Russell, 91 Ill. 300; Railroad v. Davis, 9 South. Rep. (Ga.) 252; Stackman v. Railroad, 80 Wis. 428; Babcock v. Railroad, 23 N.E. 325 (Mass) ; Railroad v. Johnson, 31 Ill.App. 185; Nugent v. Railroad, 38 Am. & Eng. Railroad Cases (Me.), 53; Scanlan v. Railroad, 38 Am. & Eng. Railroad Cases (Mass.), 48; Pidcock v. Railroad, 19 P. 191; Railroad v. Oram, 49 Texas, 341; Railroad v. Wright, 16 N.E. 145; Hall v. Railroad, 6 South. Rep. (Ala.) 277; Railroad v. Irwin, 16 P. 146; Gregg v. Railroad, 52 N.W. 63. (2) Respondent had no actual knowledge that said fence was dangerously near to the track, and he was not bound to ascertain for himself. He had the right to assume that appellant would do its duty, and that it would not subject him, while discharging his duties, to such extraneous peril. Gutridge v. Railroad, 105 Mo. 526; Devlin v. Railroad, 87 Mo. 545; Waldhier v. Railroad, 87 Mo. 37. (3) Engineers, brakemen and other trainmen will not be presumed to have notice respecting fences merely because they run over the road. Besides, the fence had been standing three years, and this was respondent's third trip over that part of the road, in daylight, in four years. Magee v. Railroad, 21 P. 114. (4) Negligence is not susceptible of direct proof, but if found must be inferred from the facts and circumstances of the case. The facts and circumstances in this case fully support the averments of the petition, and, from these facts and circumstances, the jury inferred and found that appellant was negligent with respect to this fence; and in this case, negligence was a proper question for the jury. Rine v. Railroad, 100 Mo. 234; Soeder v. Railroad, 100 Mo. 673; Tabler v. Railroad, 93 Mo. 85. (5) Respondent cannot be held negligent as a matter of law. He was performing a pressing duty, suddenly called upon to do, and his undertaking was not in itself perilous to a man of his years, build and activity. The question of contributory negligence was properly submitted to the jury. Barry v. Railroad, 98 Mo. 70; Wilkins v. Railroad, 101 Mo. 106; Maus v. City of Springfield, 101 Mo. 618; Sullivan v. Railroad, 107 Mo. 76. The question whether the respondent was engaged in the prudent discharge of his duties was submitted to the jury; and the jury having found that he was, the appellate court will not interfere. Gutridge v. Railroad, 105 Mo. 529. (6) Respondent, in his undertaking, assumed all the risk incident to and directly resulting from his act, such as losing his hold and falling, being jostled off by the lurching of the train, etc., for these he knew of, and could guard against; but he did not assume the (to him) unknown and unsuspected peril arising from appellant's negligent act in erecting its fence within fifteen or sixteen inches of passing trains. Dayharsh v. Railroad, 103 Mo. 576; Hough v. Railroad, 100 U.S. 213. (7) The court did not err in admitting testimony with reference to the movements of other sections of the train, or as to meeting trains. All the facts and circumstances tending to elucidate plaintiff's duty and conduct, in view of his situation and surroundings, were necessary to enable the trial court first, and the jury afterward, to determine the question of his alleged contributory negligence. Beach on Contributory Negligence [1 Ed.] sec. 163, p. 159; Buesching v. Gas Light Co., 73 Mo. 219.

OPINION

Black, P. J. --

The plaintiff obtained judgment in the circuit court for personal injuries received by him while in the employ of the defendant in the capacity of an engineer. The substantial averments of the petition are, that the defendant negligently erected and maintained a fence on its right of way so close to its track as to imperil the lives and limbs of its servants engaged in operating trains, by reason of all of which he was struck and dragged from his engine.

The errors assigned are:

1. That there was no proof of negligence on the part of the defendant.

2. The evidence shows that the accident was due to the plaintiff's own negligence, and the court should have so declared.

3. The plaintiff assumed the risk of injury when he attempted to tighten the hose coupling.

4. The court should have excluded the evidence as to the movements of the other sections of the same train.

The first and second of these objections render it necessary to state the evidence with some detail: The accident occurred in May, 1890. The plaintiff was a sprightly man, twenty-seven years of age. He had worked for defendant as fireman for three years. After that he worked for another road for two years. He again entered the service of the defendant as a locomotive engineer in January, 1890, and ran an engine from Moberly to points north and west of that place. For two weeks prior to the accident he had been engaged in running an engine from Moberly east to St. Louis and back, and had made two trips over that part of the road in daylight. On the day of the accident he had charge of a heavy engine hauling the first section of a freight train. There were three sections of this train, two behind him. The plaintiff's section was composed of seventeen loaded and twelve empty cars. The sections all left St. Louis for the west, and they were supposed to keep a mile apart. At the time of the accident the second section was only three-quarters of a mile behind the first, and of this fact plaintiff had knowledge. He was within two or three miles of a station called Wright City, where he expected to pass a train going in the other direction which had the right of way.

At this juncture of affairs he saw water running out of the tank, occasioned as he knew by a loose nut which attached the hose to the water tank on the tender. It was through this hose that the engine boiler received its supply of water. The tank of the tender was built upon a heavy timber frame, and the loose nut was located at the bottom of the tank and within this frame and twenty-two inches from the outside of the tank. Instead of stopping the train to tighten the nut, he got a hammer and took a position outside of the cab and tender. He grasped a hand-hold at the lower part of the front end of the tender with one hand, placed his right foot on a step at and a little below the front end of the tank and his left foot still lower down on the tender truck frame, and then swung his body around against the tank, and in this way was able to feel for and reach the nut with the hammer. He struck it twice and succeeded in tightening it so as to stop the waste of water. At this instant his hip struck a fence, and he was knocked off. Car wheels ran over his left arm so that amputation became necessary.

There was a road-crossing at the place of the accident, and the plaintiff was struck by the east fence on the north side of the track. This fence extended up to a cattle-guard. At the end of the fence there was a slanting upright board. The evidence tends to show that this board was thirty inches from the rail at the bottom and about forty-eight inches from a perpendicular to the rail at the top, thus leaving a space between the outside of the tender and the board of six or eight inches at the bottom and sixteen or eighteen inches at the top of the fence. A witness who resided near to the place of the accident testified on cross-examination: "Q. The fence was, in general form, just such a fence as we have at cattle-guards everywhere? A. Yes, I did not measure any cattle-guards at the time of the accident. They all looked about the same, all the cattleguards along the track being about the same slant and the same nearness to the track. Have been along up and down the track at different points for a few miles each way. It was a pine board fence."

The evidence of the plaintiff is to the further effect that there were two hose connections between the boiler and the water tank; that one of them was out of...