Pearson v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 28 January 1918
• Docket Number: No. 12009.,12009.
• Court: Missouri Court of Appeals
• Parties: PEARSON v. CHICAGO, M. & ST. P. RY. CO.

200 S.W. 441

PEARSON v. CHICAGO, M. & ST. P. RY. CO.

No. 12009.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by Robert Pearson against the Chicago, Milwaukee, & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Judgment reversed, and cause remanded.

J. M. Davis & Son and Frank W. Ashby, all of Chillicothe, for appellant. Fred S. Hudson, of Kansas City, for respondent.

TRIMBLE, J.

An action for damages on account of personal injuries alleged to have been caused by the negligence of defendant. A car of cabbage had been transported by defendant to Chillicothe and set on the house, or unloading, track at the station. The car had been there four or five days, and during that time various persons had been going there and buying cabbage from a salesman therein. Plaintiff, with his team and dray, had gone to the car to get some cabbage, and, in company with the salesman and two women, was inside the car busily engaged in sacking the cabbage preparatory to hauling it away. At either end of said unloading track were other cars standing thereon. While plaintiff was thus engaged in the car, defendant sent two cars of coal in upon said track at the north end thereof by means of what is known as a "flying switch." The speed necessary to effect that kind of a switch gave to the coal cars such a terrific momentum that they struck the cars adjacent to the car plaintiff was in with great force, and violently drove them against the cabbage car, knocking the people in the car down, and, according to plaintiff's claim, injuring him.

The petition set forth the above situation, and charged that, without signal or warning to plaintiff, the defendant's servants and employés carelessly and negligently ran its cars with great force and violence against the car of cabbage.

A trial was had, which resulted in a verdict for defendant, and plaintiff has appealed, claiming error in defendant's instruction No. 3 in reference to the defense of contributory negligence.

According to plaintiff's evidence, he had been in the car about fifteen minutes before he was injured, and when he went to the car he did not see or hear a train or engine and did not know that one was in the yard until his car was struck. There was also evidence in plaintiff's behalf tending to show that plaintiff came to the car before the train arrived in the yards. Plaintiff's other evidence also tended to show that a flying switch was made, that the cabbage car was violently struck, and everybody in the car knocked down, and plaintiff was injured, and that no warning or notice was given. The fact that a flying switch was made is conceded.

The flying switch was made by the engine pulling the cars after it until they obtained a sufficient momentum to allow the engine to be uncoupled from the cars and go on past the switch, leaving the cars to follow after, but at a somewhat less speed, so that by the time they reached the switch it would take the cars in on the unloading track. The ground was level, and, to make the switch, the cars had to have considerable speed so that their momentum would take them to and over the switch and onto the track. After the cars had obtained their momentum and were uncoupled from the engine, the only way they could be controlled was by the hand brakes. According to defendant's evidence the cars got beyond the control of the brakeman; they could not hold them; and one of the brakemen says the other got off just before the crash came, but he did not hear him halloo any warning and he himself did not give any warning. The other brakeman said he ran along on the ground hallooing to "look out below there." It is manifest that the cars were at that time coming and uncontrollable. The employés, then, evidently knew that there were persons in the car when they made the flying switch; besides, plaintiff's wagon on the side of the car and at the open door thereof would indicate that some one was inside. To make a flying switch under such circumstances would very likely cause the cars to get beyond control, and, "if done without full warning and all suitable...