Nelson v. Wabash Railroad Company

• Decision Date: 05 October 1908
• Parties: FREDERICK NELSON, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

112 S.W. 1017

132 Mo.App. 687

FREDERICK NELSON, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 5, 1908

Appeal from Jackson Circuit Court.--Hon. Edward P. Gates, Judge.

Judgment affirmed.

J. L Minnis, Frank P. Sebree and John D. Wendorff for appellant.

(1) The court committed error, both in not sustaining a demurrer to plaintiff's evidence, and in refusing to instruct the jury at the close of all the evidence to return a verdict for the defendant. Bennett v. Railroad, 99 S.W. 483; Clancy v. Transit Co., 192 Mo. 615; Holmes v Railroad, 190 Mo. 104; Engleking v. Railroad, 187 Mo. 164; Giardina v. Railroad, 185 Mo. 334; Boring v. Railroad, 194 Mo. 549; Abbot v Railroad, 97 S.W. 198; Walker v. Railroad, 193 Mo. 481; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 228; Sims v. Railroad, 116 Mo.App. 579; Mackowik v. Railroad, 94 S.W. 261; McGrath v. Transit Co., 94 S.W. 875; Ayers v. Railroad, 190 Mo. 238; Holwerson v. Railway, 157 Mo. 244; McGauley v. Transit Co., 179 Mo. 590; Theobold v. Transit Co., 191 Mo. 432; Zumault v. Railroad, 175 Mo. 313; Tanner v. Railway, 161 Mo. 497; Sharp v. Railroad, 161 Mo. 234; Feeback v. Railroad, 167 Mo. 216; Carrier v. Railroad, 175 Mo. 481, 486; Evans v. Railroad, 178 Mo. 517; Davis v. Railroad, 159 Mo. 6; Railroad v. Mosley, 57 F. 921; Aerkfetz v. Humphreys, 145 U.S. 418; Bell v. Railroad, 72 Mo. 58; Dahlstrom v. Railroad, 96 Mo. 102; Stillson v. Railroad, 67 Mo. 676; Loring v. Railroad, 128 Mo. 356. (2) Plaintiff was guilty of contributory negligence which precludes him from recovering against the defendant in this case. See authorities cited under point I. (3) Defendant was not guilty of any negligence. Theobald v. Transit Co., 191 Mo. 432; McGauley v. Transit Co., 179 Mo. 590; Milton v. Railroad, 99 Mo.App. 286; Bell v. Railroad, 72 Mo. 58; Dahlstrom v. Railroad, 96 Mo. 102; Stillson v. Railroad, 67 Mo. 677; Aerkfetz v. Humphreys, 145 U.S. 420; Loring v. Railroad, 128 Mo. 357.

Frederick J. Chase and William H. Hazel for respondent.

(1) The defendant was guilty of negligence in suddenly backing the cabooses which had been standing still for twenty minutes, or more, on the track, without giving any warning or signal of their intention to thus move them; or without having any person in a position to signal the engineer when to stop. Lanning v. Railroad, 196 Mo. 647; Railroad v. Elliott, 54 Neb. 299; Gessley v. Railroad, 32 Mo.App. 413; Lovell v. Railroad, 97 S.W. 193; Spotts v. Railroad, 111 Mo. 380; Reed v. Railroad, 107 Mo.App. 238; Railroad v. Shaw, 116 F. 621; Copley v. Railroad, 73 P. 517; Taylor v. Railroad, 93 Tenn. 305; Railroad v. Potts, 92 Ky. 30. (2) The question of plaintiff's contributory negligence was properly submitted to the jury, under the instructions of the trial court. Hayes v. Railroad, 74 F. 279; Gentry v. Railroad, 163 U.S. 353; Erickson v. Railroad, 171 Mo. 647; Reed v. Railroad, 107 Mo.App. 238; Railroad v. Elliott, 54 Neb. 299; Railroad v. Ives, 144 U.S. 408; Peterson v. Transit Co., 114 Mo.App. 374; Schafstette v. Railroad, 175 Mo. 142; Riska v. Depot Co., 180 Mo. 168; Spotts v. Railroad, 111 Mo. 380; Railroad v. Shaw, 116 F. 621; Sack v. Car Co., 112 Mo.App. 476; Dickson v. Railroad, 109 Mo. 413; Church v. Railroad, 119 Mo. 203; Railroad v. Stout, 17 Wall. (U.S.) 657.

OPINION

BROADDUS, P. J.

This is an action by plaintiff to recover damages for personal injuries alleged to have been received through the negligence of the defendant on the 31st day of March, 1905, at Kansas City, Missouri. The plaintiff received his injuries in defendant's yards in said city on one of its switch tracks. These yards are about one-fourth of a mile in length and located just north of St. Louis avenue and east of Santa Fe street and consist of about a dozen parallel railroad tracks running from Santa Fe street east to what are called the Bluffs, and also parallel with St. Louis avenue. The north one of these tracks was used for storing coaches, Pullman cars, ice cars, and cabooses, and was designated as the coach track. Passing over these tracks were the tracks of the elevated railroad company.

The plaintiff was in the employ of the Pullman Car Company as foreman of a small crew of men, whose business it was to clean, repair, and get the Pullman sleeping cars ready for their next trip, and it was also the duty of plaintiff to see that there were no outside causes likely to injure the Pullman cars. He had been employed as such foreman for about one year, but had been in the employ of the Pullman Car Company in and about its cars in said yards for more than a dozen years previously.

A short time prior to the accident, which occurred at about eleven o'clock a. m., the plaintiff started from the west end of the railroad yards to go to the east end of the coach track, at which time he noticed two cabooses standing on the said coach track near to Santa Fe street. He remained there a short time and then turned to go back east, and while he was passing he noticed a telegraph wire lying on and slacked directly across the top of a Pullman car. From his position at the side of the car he was unable to see to what point the wire extended and whether it would be necessary for him to have it removed to avoid injury to the car, and in order to trace the direction of the wire, he walked along the side of the track to a point about twenty feet west of the west end of the car. At this point he looked west, and discovered the two cabooses standing about one hundred feet away in the same place they had been standing when he noticed them before. He then stepped over on the north rail of the coach track in order to see where the telegraph wire extended. After having located the wire and just as he was turning around he was struck by the east end of one of the cabooses which was being moved by a switch-engine going eastward, and was thrown down and injured. The engine at the time was being moved slowly towards the Pullman cars with the fireman on the south and the engineer on the north side of the engine looking east, the direction they were going. Before the caboose struck plaintiff, a man about one hundred feet north of the track attracted the attention of the engineer by hallowing and waving his hands, whereupon the engineer stopped his engine as quickly as possible, in about the distance of twelve feet, but not until after plaintiff was struck and knocked down. None of the train crew saw plaintiff before he was struck.

Mr. Clifford, who attracted the attention of the engineer as stated, first saw plaintiff on the track about thirty feet west of the elevated road at which time the caboose was about the same distance west of plaintiff. Clifford tried to attract plaintiff's attention by whistling and hallowing at him, but did not succeed in doing so, but plaintiff turned and was proceeding to start across the track without looking toward the caboose. It was also shown that it was not usual to place cabooses on the coach track until in the afternoon, but that sometimes they were placed there in the forenoon.

The vital question in the case is, was plaintiff entitled to recover under the testimony.

The position of the plaintiff is that: "The defendant's engineer was guilty of negligence in suddenly backing the cabooses which had been standing still for twenty minutes or more on the track, without having given any warning or signal of his intention to thus move them; or without having any person in a position to signal the engineer when to stop." In Lanning v. Railroad, 196 Mo. 647, the facts were; "That the engineer in charge of an engine in the track yards backed cars up an incline of a coal dock striking other cars, from which plaintiff and his crew had emptied their coal into the bins, and caused them to move backward and injure plaintiff while he was using his crowbar as a prize to move said cars out of the way, and forcing said crowbar down on plaintiff. . . ." There was no warning of any kind given. The court held, "that an instruction which permitted plaintiff to recover if the engineer caused the engine to collide with the cars behind which plaintiff was working 'without giving any warning or signal that would be reasonably calculated to notify and warn plaintiff of the approach of said engine,' was not error." "The general rule is that, as to persons lawfully upon the track engaged in labor, the railroad company owes a duty of active vigilance; and such persons have a right to become engrossed in their labor to such an extent that they may be oblivious to the approach of trains, relying, as they may, upon the duty imposed by law with reference to them." [Gessley v. Railroad, 32 Mo.App. 413.] The facts of that case were: the owner was unloading his freight from a car on a side track where it had been placed for that purpose, and while he was so engaged the defendant backed its cars against the car plaintiff was so unloading without giving any warning, whereby he was injured. "A consignee engaged in unloading a car placed on an unloading track is on the railway track by invitation of the company, and he is not compelled to be on the lookout for unusual dangers, but the employees of the company engaged in switching cars on the unloading track must give warning of the approach of the cars." [Lovell v. Railway, 121 Mo.App. 466; 97 S.W. 193.] The holding was similar in Spotts v. Railway, 111 Mo. 380. The authorities in general are to the same effect, for which reason it is not necessary to cite them.

The appellant contends, however, that the principle has no application to this case, as it relates to instances of persons loading or unloading cars at the invitation of the company or who were so placed that they were unable to...