Parker v. Hannibal & St. J. R. Co.

• Decision Date: 28 March 1892
• Citation: 19 S.W. 1119,109 Mo. 362
• Court: Missouri Supreme Court
• Parties: PARKER v. HANNIBAL & ST. J. R. CO.

19 S.W. 1119

109 Mo. 362

PARKER v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri.

March 28, 1892.

FELLOW SERVANTS — COMMON EMPLOYMENT.

Railroad section hands engaged in ballasting the railroad track with stone, which is hauled to them on a construction train, and unloaded by the train men, are in a common employment, and are fellow servants with the train men. Per SHERWOOD, C. J., and GANTT and MACFARLANE, JJ.; BARCLAY, BRACE, and THOMAS, JJ., dissenting; BLACK, J., holding it was a question for the jury.

In banc. Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by Nannie J. Parker, as widow of William C. Parker, deceased, against the Hannibal & St. Joseph Railroad Company, to recover damages for the death of her husband. Plaintiff obtained judgment. Defendant appeals. Reversed.

The other facts fully appear in the following statement by GANTT, J.:

The plaintiff, as the widow of William C. Parker, commenced this action December 2, 1886, against the defendant, to recover damages sustained by her by reason of the death of her husband, who was killed by a construction train on defendant's track, near Randolph Bluff, on 26th day of October, 1886. Plaintiff's husband had been engaged as a section hand or track laborer for the defendant for about two years prior to his death. On the 26th October, 1886, he was engaged at work on defendant's track at a place called "Randolph Bluff," with the rest of the section men, and had been working at that point every day for about two weeks prior to his death. The train which struck him was a construction train engaged in carrying rock from the rock crusher at Minarville, five miles east of Randolph Bluff, to a point near the bluff, and west of where the section men were working, for the purpose of ballasting the track, and had been thus engaged daily for three months. The engine of the construction train pulled the cars after it going west, and, returning east, pushed the cars in front of it. It made the round trips past the place where the section men were at work upon the track daily, the last trip being about 5 o'clock in the afternoon, each day. It was while this train was running eastward, on 26th October, 1886, at 5 o'clock P. M., that it struck William Parker, plaintiff's husband, and killed him. From the evidence, there were about 25 passenger and freight trains running daily over that part of the track where Parker was killed, during the day-time.

The evidence discloses that, at the time of the accident which resulted in Parker's death, the train had discharged its stone, and was being run, caboose in front, eastward, to Minarville. Parker was working on defendant's track, tamping some rock under the track, with his face to the east and back to the west. On the part of the plaintiff several witnesses testified, in a negative way, that the train made no signals, either by blowing the whistle or ringing the bell; that, some 150 yards west of the point where plaintiff's husband was at work, there was a curve in defendant's track; that parallel with defendant's track was the Wabash Railroad track, and distant at this point about 9 feet, one from the other. On the part of defendant there was much positive affirmative evidence that, at a point some 2,000 feet west of where Parker was killed, the engineer blew three blasts of the whistle, as a signal that he was going to back over this track with his train. There was also evidence that, just at the time plaintiff's husband was struck and killed, a freight train of 48 cars, on the Wabash, was running eastward by this place, making much noise. A number of witnesses were allowed, without being qualified as experts or showing any familiarity with the speed of trains, to testify that, in their opinion, the train was running 30 to 35 miles an hour, and was racing with the Wabash train. On the part of defendant, there was positive testimony that, just west of the point where Parker was killed, there was a curve in the track, and that while going round this curve the engine blew four blasts of the whistle, two long and two short. It appears from the evidence that on the east or front end of the construction train, as it backed east, two men were stationed, one with a flag. The train was running backwards, at a rate variously estimated from 15 to 35 miles per hour, at the time it struck Parker. From the point where Parker was at work the track could be seen westward a distance variously estimated by plaintiff's witnesses as being from 150 yards to a quarter of a mile. That all of the other men composing the gang of section men were west, and within 60 feet, of the point where Parker was working, being between him and the approaching train, scattered along the track at work. That the section foreman, Hudgens, noticed the approach of the train, and called out to his men to get off the track. Seeing that Parker was standing over the north rail of the track, busy at work, with his back to the approaching train, without heeding the warning, the foreman, Joseph Dawson, and Prince L. Hudgens all three started and ran towards him, yelling as loud as they could for him to get off the track; one of them (Dawson) running some 40 or 45 feet towards Parker before he was struck. In addition to this, the men on the front end of the leading car on the train hallooed with all their might, but failed to attract his attention in time to prevent the train striking him. It seems very probable that the noise made by the Wabash train, passing at the time, prevented the deceased hearing these warnings.

The negligence complained of is the excessive speed of the train; the fact that it was backing over the track; the failure of the train men to give signals to the track men at work on the track; and the racing with the Wabash. The defense is that there was no negligence; that as to track men, the company did not owe them the duty of whistling and ringing the bell; that this work had been going on daily for three months over this same track, and this same train passed daily at the very hour plaintiff's husband was struck; that Parker and the other section men had been for two weeks at this point ballasting the track and repairing it, and had every reason to expect this train at that time; that while it was an irregular train in one sense, yet at this time it made quite regular trips twice a day; that the speed made was necessary to permit this train to clear the track for the regular passenger train; and that it was the negligence of fellow servants in charge of the construction train, who were engaged in the same common employment, for the same common master, at that time, and the contributory negligence of plaintiff's husband.

Upon request of plaintiff, the court gave the jury the following instructions, to the giving of which the defendant objected at the time, and excepted: "(1) The plaintiff in this action seeks to recover of defendant $5,000 damages for the killing of her husband while he was at work as a section hand upon the defendant's railroad, by one of defendant's construction trains; and her right to recover is based upon alleged negligence of the servants and agents of defendant in the running and management of the train in question. The defendant railroad company, by its answer, admits that plaintiff's husband was killed while in its employ, but denies the negligence charged by plaintiff, and, in substance, alleges that the death of plaintiff's husband was occasioned solely by his own carelessness and recklessness, and without any fault or neglect of defendant's agents or servants contributing thereto. The questions for you to determine, under the issues thus made and the evidence and the instructions of the court, are — First. Did the agents and servants of defendant in charge of the train in question run and manage said train in a negligent, careless manner? If so, was the injury to and death of plaintiff has satisfied you, by a preponderance of the evidence, that these questions should be answered in the affirmative, then you will find a verdict in her favor, unless the defendant railroad company has satisfied you, by a preponderance of the evidence, that the plaintiff's husband was at the time guilty of carelessness, recklessness, or negligence, and that such want of due and proper care upon his part directly contributed to his death. These questions it is your duty to determine, under all the facts and circumstances in proof. (2) The degree of necessary, usual, and proper precautions to secure his own safety, to which plaintiff's husband was held, as a section hand upon defendant's railroad, was such care, caution, and diligence only as a man of ordinary prudence should have exercised in the same situation, under the facts and circumstances in proof. (3) If the jury find from the evidence that there was a sharp curve in defendant's track a short distance west of the point at which plaintiff's husband was killed; that it was the custom of defendant's railroad, known to its employes, to give notice of the approach of its trains by ringing the bell or sounding the whistle when running its trains around its curve on its track, — then it was the duty of the agents and servants of defendant, in charge of said train, to give such signals in this instance. (4) If the jury find from the evidence that the agents and servants of defendant, in charge of the construction train in question, were running said train backward; that they were engaged in a race with a train of cars on the Wabash, St. Louis & Pacific Railway, which at that point runs parallel with and near to defendant's track; that they were running said construction train at such a high rate of speed, and in such a manner, as to endanger the lives of employes upon its track; that they knew, or by the exercise of ordinary care upon their part might have known, that plaintiff's husband and his colaborers upon the track were at or near the point where...