Power v. Wabash R. Co.

• Decision Date: 10 June 1912
• Parties: POWER v. WABASH R. CO.
• Court: Missouri Supreme Court

148 S.W. 611

POWER v. WABASH R. CO.

Supreme Court of Missouri.

June 10, 1912.

1. MASTER AND SERVANT (§ 286)—INJURY TO SERVANT — NEGLIGENCE — QUESTION FOR JURY.

Whether a railroad company negligently failed to light a trestle, so that workmen engaged in removing a wreck near by and repairing the track torn up by the wreck could see it and prevent their falling over the embankment, held, under the evidence, for the jury.

2. MASTER AND SERVANT (§ 289)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

Whether a section hand, engaged with others in removing a wreck near a trestle and repairing the track torn up by the wreck was guilty of contributory negligence in attempting to pass over the trestle at night, held, under the evidence, for the jury.

3. NEGLIGENCE (§ 136)—QUESTION FOR JURY.

Where different inferences may fairly be drawn from the undisputed facts, the question of negligence is for the jury.

In Banc. Appeal from Circuit Court, Gentry County; W. C. Ellison, Judge.

Action by Annie L. Power against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This is an action for damages on account of the death of plaintiff's husband, Alonzo Power, tried in the Gentry county circuit court, where, on a peremptory instruction in the nature of a demurrer to the evidence, there was a verdict for defendant, and plaintiff has appealed.

The deceased had been employed as a section hand of defendant almost two years, working on the section at Stanberry. On October 25, 1907, a freight train of 29 cars was wrecked about 22 miles east of Stanberry, just east of what is known as the "curve trestle," tearing up a large portion of the track. The west end of the torn-up track was so close to the trestle that the men, including the deceased, unloaded ties and rails during the afternoon within 60 feet of the trestle and carried them down the track to the place where they were needed. The wrecking train, consisting of a dining car, a truck car, and a supply car, carrying the plaintiff's husband and a large number of other section men picked up from Stanberry along the route, reached the wreck about half past 1 in the afternoon. From that time all was quick and rapid action. The cars were shifted from point to point, and left standing as the exigencies of the work required. Near 5 o'clock the work train was run four or five miles back to McFall in order to let trains from the east and west transfer passengers and mail at the wreck. Then the work train went back to its work, reaching there probably a little late for supper.

The trestle was about 20 feet long, under which was a farm crossing, with precipitous sides, apparently a ravine about 20 feet deep. There was no railing along the sides of the trestle and no guards at the end. When night came on, it was misting rain and at 8:30 o'clock was, of course, very dark. Neither the cars nor the trestle were marked with lights. The glimmer from bonfires, torches, and probably an occasional lantern from the eastward, revealed the dim outline of cars on or near the trestle, but did not show the trestle, or bank. Several workmen had torches, and some of them used torches in going to and from supper.

From the time the train had returned from McFall, the workmen, from time to time, as their work would permit, had been going in squads of four or five to their supper, which was served in the dining car standing west of the trestle. In the meanwhile the train, including the dining car, was shifted from time to time. So far as the evidence shows, the workmen who had gone to supper before Power started had all passed over the trestle without being obstructed by a car thereon. Two of them with a torch had returned over the trestle from supper to where Power was working just before he started to supper.

About half after 8 Power, accompanied by Cogdill, Wilson, and Gray, his fellow workmen, started to supper. Cogdill and Wilson were witnesses for the plaintiff, but they differed radically in their testimony. Cogdill says that they walked on the outside of the ties in going along the track to their supper, giving as a reason for so doing as follows, "Well, it is a whole lot easier walking out there than it is stepping from one tie to the other." Wilson testified that they were all walking between the rails on the track, and that, when they reached the cars, Power and Cogdill stepped off the north side of the track, and he and Gray off the south side. All started around the cars. At that time one of the cars was standing partly on the trestle and partly east of it. It had not been there over 30 minutes. Some workmen with a torch had returned from supper over the unobstructed trestle to where Power was at work just before Power and his companions started. The dining car was further on west.

All six of the plaintiff's witnesses, who were all at the wreck, testified that they knew about the trestle, and four of them said that Power worked at times within 60 feet of the trestle. The deceased had no knowledge of the vicinity, except what he acquired on that occasion. The principal part of the wreck was about 360 feet east of the bridge.

Cogdill testified as follows: "Q. I will ask you to tell the jury whether you walked up to supper with Mr. Power that evening, or started to? A. Yes, sir; I walked up on the north side of the track, on the cinders. We wasn't on the ties. The truck car was on the culvert, and the supply car, with rails and ties, was east. Before we got to the culvert, recollect, I said to Lon—I said, `Lon, there is a bridge here some place, but I don't know whereabouts.' I know there was a bridge there, and so did he. He says, `Well, you follow me.' Of course, I won't make the remarks he did. He said, `You follow me, and I will take you through all right.' Well, he hadn't any more than got the words out of his mouth until he fell. Well, I stepped on the block he fell off of. I come that near falling. Q. At that time, you didn't know you were that close to it? A. I didn't know we were that near the culvert. Q. And he didn't either? A. If he did, he wouldn't have fell. Q. If you had been in front of Mr. Power, this accident would have occurred to you? By Mr. Peery, Counsel for Defendant: Hold on! I object. A. I don't know whether it would or not, because— By the Court: Hold on! When an objection is made, you must keep quiet until I pass on it. Q. Well— A. I'll tell you. Mr. Showen, if he hadn't knowed the road so well, I wouldn't have followed him. But he knew where he was going. But I didn't. I knew there was a bridge there, and I was going to take care of myself. I wouldn't have went just then. There was nobody told us to go to supper at all."

Wilson testified as follows: "Q. Tell the jury, then, just how he went and all about it, up to the time of this accident. A. There was Harry Gray and myself and Mr. Cogdill— William Cogdill—and Mr. Power started up the track to the dining car. We came to those cars, and we stepped off. Harry Gray and myself stepped off on the south side of the track, and Mr. Cogdill and Mr. Power on the north side, and, about that time, I spoke to Harry and told him we were getting somewhere near that culvert. I couldn't tell just where. He stopped, and he said, `Yes.' I heard a man fall then. About that time, Mr. Cogdill called to Mr. Power. He didn't answer him, and I says: `Mr. Power fell in that culvert.'"

The petition was broad enough to cover all phases of the evidence, and the answer is a general denial, and also a plea of contributory negligence and the assumption of risk.

E. E. Aleshire, R. P. Duncan, R. S. Robertson, and S. S. Gundlach, for appellant. J. L. Minnis and J. W. Peery, for respondent.

ROY, C. (after stating the facts as above).

Let it be conceded for the purposes of this case that it was not negligence on the part of the company to have no rails or guards at the trestle; and also that it was not negligence under the circumstances to let the car stand on the trestle as shown in evidence. We do not undertake to pass on those questions, but concede them in order to get right at the main points in this case, i. e.: Were the circumstances in evidence such as to authorize a jury to find that the defendant was negligent in failing to mark the location of the trestle by a light or lights so that passing workmen would see the embankment and not fall over? And is the evidence such that the trial court was justified in holding as a matter of law that the deceased was guilty of such contributory negligence as prohibited plaintiff's recovery?

The changes along and on that railroad track at the scene of the wreck, after the work of reconstruction began, had been kaleidoscopic. The track was being reconstructed. Wrecked cars were being removed. Old landmarks were constantly disappearing and new ones taking their places. Daylight was gone, and the clouds and rain intensified the darkness. The flicker of distant lights revealed prominent objects, such as cars, in dim outline, but intensified the darkness at their feet. There is nothing to show from what point deceased started to supper; but, supposing he went from the point of the principal damage, he had over a hundred yards to go before reaching the trestle. Power knew about the trestle; but there is no showing that there was any object near the trestle by which the attention of one passing by would be called to it. Did he think that the trestle was beyond the car and that it was unobstructed for passage? Such a conclusion may be drawn from the evidence. If the evidence showed that he knew the relative position of the car and the trestle, of course it was fatal negligence in him to proceed as he did. Evidently the men could not see the trestle or the passage under it even a step in front of them. The very facts relied on by defendant as showing contributory negligence bear the opposite construction. When they started around the car, Cogdill...