Quigley v. Hines

• Decision Date: 19 December 1921
• Citation: 235 S.W. 1050,291 Mo. 23
• Parties: ELIZABETH B. QUIGLEY, Administratrix of Estate of JAMES H. QUIGLEY, Appellant, v. WALKER D. HINES, Director General of Railroads in Charge of and Operating ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY and TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS
• Court: Missouri Supreme Court

235 S.W. 1050

291 Mo. 23

ELIZABETH B. QUIGLEY, Administratrix of Estate of JAMES H. QUIGLEY, Appellant, v. WALKER D. HINES, Director General of Railroads in Charge of and Operating ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY and TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS

Supreme Court of Missouri, First Division

December 19, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Granville Hogan Judge.

Affirmed.

W. H Douglass for appellant.

(1) The deceased was engaged in interstate commerce at the time he sustained the injuries. (a) In doing repair work on tracks of an interstate railroad the employees engaged in this work are employed in interstate commerce. Pederson v Railroad, 229 U.S. 146; Southern R. R. v. Accident Comm., 251 U.S. 263; 1 Roberts' Federal Liability of Carriers, secs. 468, 469, 481, 482, 473, 474; Southern Railroad v. McGuin, 240 F. 649. (b) The deceased at the time he sustained the injury was on his way home and still on the premises of the defendant, and while returning to and from his work was still employed in interstate commerce. 1 Roberts' Federal Liability of Carriers, sec. 556, p. 784; Erie Railroad Co. v. Winfield, 244 U.S. 173; North Carolina Railroad v. Tachary, 232 U.S. 260; Williams v. Scharff, 222 S.W. 412. (2) It was the duty of the defendant to anticipate the presence of deceased walking between these tracks and in a position of danger, as the testimony shows that employees usually and frequently walked along this approach on their way to and from their work. Dunn v. Railroad Co., 192 Mo.App. 268; Justus v. Railroad, 224 S.W. 83; Thorp v. Wabash Ry. Co., 206 S.W. 403; L. & N. Railroad Co. v. Eversolle, 178 Ky. 67, L. R. A. 1918B, 211; Stark v. Lusk, 194 Mo.App. 250; Gray v. Wabash Railroad, 198 S.W. 1137; 4 Thompson on Negligence, sec. 4456; Feldman v. Railroad, 175 Mo.App. 629. (3) The deceased, in walking between the tracks on the approach, was in a position where a step to the side would place him in a position where he would be struck by a passing train, and he was therefore in a position of danger in walking between these tracks on the approach. Dunn v. Railroad Co., 192 Mo.App. 268; Southern Railroad Co. v. McGuin, 240 F. 651; Barry v. Railroad, 98 Mo. 62. (4) It was the duty of defendant to adopt some reasonably safe system of signals or method of signaling employees walking between the tracks of the approach of a train being run on the wrong track, that is, irregularly, as an employee walking between these tracks was in a position of danger. Southern Railroad Co. v. McGuin, 240 F. 651; Reagan v. Railroad, 93 Mo. 352; Gaska v. Car Co., 127 Mo.App. 180. (5) Deceased, in walking between the tracks on the approach, was in a position of peril, especially in view of the fact that a westbound train was approaching on the eastbound track, as a single step to the side would place him in a position to be struck by the train and it was the duty of the defendant's employees in charge of the train to keep it under control, run it at such a rate of speed and stop it or give a warning of its approach on the wrong track in time to avoid injury to deceased. Gray v. Wabash Railroad Co., 198 S.W. 1137; Southern Railroad Co. v. McGuin, 240 F. 649. (6) Even though deceased may have been guilty of negligence this would not defeat plaintiff's right to recover under the Federal Employers Liability Act if the defendant was guilty of any negligence which in any degree contributed to the injury. Brightwell v. Lusk, 194 Mo.App. 647; Penn. Co. v. Cole, 214 F. 948; Sec. 3, Chap. 149, 35 U. S. Statutes at Large, p. 66; Southern Railroad Co. v. McGuin, 240 F. 652. (7) If from all the facts in this case an inference of negligence is permissible, then, it is a case for the jury. Myers v. Coal Co., 233 U.S. 192; Jones v. Railroad Co., 178 Mo. 543; Settle v. Railroad, 127 Mo. 341; Leeright v. Ahrens, 60 Mo.App. 178; Middleton v. L. H. & P. Co., 196 Mo.App. 263. (8) Deceased was not guilty of assumption of risk. (a) Either under the common-law assumption of risk as interpreted by our State courts. Williams v. Pryor, 272 Mo. 613; Fisk v. Railroad, 263 Mo. 106. (b) Or under the common-law assumption of risk as interpreted by the Federal courts. Texas & Pac. Ry. Co. v. Swearingen, 196 U.S. 51; Railroad v. McDade, 191 U.S. 64; Railroad Co. v. Hall, 232 U.S. 101; Yazoo Railroad Co. v. Wright, 235 U.S. 376; Chesapeake & Ohio v. Proffitt, 241 U.S. 468; Chesapeake & Ohio v. DeAtley, 241 U.S. 315; Erie Railroad Co. v. Purucker, 244 U.S. 320; Southern Railroad Co. v. McGuin, 240 F. 649. (9) Whether or not deceased was guilty of assumption of risk is a question for the jury. Erie Ry. Co. v. Purucker, 244 U.S. 320; Southern Railroad Co. v. McGuin, 240 F. 649, 652.

J. L. Howell and W. M. Hezel for respondents.

The instruction requested by the defendants, and given by the court, in the nature of a demurrer to the evidence, was properly given. (1) Because the deceased had heard the danger signals and had given the railroad sign "come on" while he was in a place of safety, and for the reason that there was nothing to suggest to the engineer that Quigley did not know the train was on the eastbound track. Southern Railroad Co. v. McGuin, 240 F. 649; Railroad Co. v. Eversole, 198 S.W. 548; Erie Railroad Co. v. Purucher, 244 U.S. 320; Dunn v. Railway Co., 192 Mo.App. 260. (2) Because under the circumstances there was no duty on the part of the engineer to stop his train until Quigley left the place of safety and put himself in peril; and there is no testimony that the engineer could have stopped the train in time to have avoided injuring him after he put himself in peril. Baecher v. Railroad, 240 Mo. 519; Steele v. Railroad, 265 Mo. 97. (3) Because the deceased assumed the risk, if any, created by the failure of the defendants to establish signals calculated to specifically warn of the irregular running of trains, even though it be held that failure to provide such signals was negligence. Boldt v. Railroad, 245 U.S. 442.

OPINION

JAMES T. BLAIR, J.

-- This is an action for damages for the death of James H. Quigley, who was struck and killed by a train operated by employees of respondent. At the close of appellant's evidence the trial court's rulings resulted in an involuntary nonsuit. The motion to set aside was overruled, and judgment entered accordingly. This appeal followed.

The railroad upon which Quigley was killed crossed the Mississippi River at St. Louis on the Merchants Bridge. There were two tracks. There were two approaches to the bridge from the west. One of these led to the northwest, and is called the Carrie Avenue approach. The other led west and then curved to the south, and is called the Bremen Avenue approach. This approach carried two tracks and upon it the accident occurred. From the west end of the bridge the Bremen Avenue approach consisted, for some distance, of trestle work. The fill upon which the tracks continued from the end of this trestle was about thirty feet high where it joined the trestle. The grade descended thence toward Bremen Avenue. The top of this fill was broad. It carried two tracks. There was a space between these tracks which, the witnesses say and the photographs introduced by appellant show, was ample to permit a pedestrian to walk with safety between them when both tracks were occupied by moving trains. The evidence tended to show that employees of respondent had so used this approach in going to and from their work that it was respondent's duty to expect them upon it. Quigley had been in railroad service for thirty-two years, and had served as a railroad engineer on the roads in question for twenty-five years. On the day he was killed he had been at work on the Illinois side. His day's work done, he was on his way to his home in St. Louis. The train which struck him consisted of an engine and one car. Its function was to take employees to their work and, after that work was done, to their home side of the river. It was called the cab train. On this occasion it came from the Illinois side to the Missouri side. When it reached the bridge it was found that the north, or west-bound, track was occupied by a long freight train. The crew of the cab train were directed to proceed with their train across the bridge on the south, or east-bound track. This they did. The train reached the west end of the bridge. In doing so it passed the long freight train which occupied the north track. It then proceeded to the junction of the Carrie Avenue and Bremen Avenue approach. The testimony is that Quigley was at this point when the cab train was there. He proceeded down the approach, between the tracks. Subsequently the cab train started down the Bremen Avenue approach, still on the southern or southeasterly track. The only crossover by which it might pass to the right-hand track was near Bremen Avenue and somewhat beyond the point at which Quigley was struck. Quigley had reached a point several hundred feet ahead of the train before it left the Carrie Avenue junction point. After leaving this point the train attained a speed of about twenty-five miles per hour. The tracks leave the bridge in a westerly direction and curve to the south. There is a steady curve, which reaches its sharpest state at a point somewhat southwest of the place of injury. The employees operating the engine of the cab train, when about two hundred feet from Quigley, observed him. The bell had been ringing and continued to ring. The engineer had commenced to slow down for the Bremen Avenue stop. When he saw Quigley at the distance stated he began to give the danger signal. This was given until Quigley partly turned and looked toward the on-coming train and signaled to the engineer, to "Come on. Everything is all right. Everything is...