Rigley v. Prior

• Decision Date: 23 June 1921
• Docket Number: No. 22136.,22136.
• Citation: 290 Mo. 10,233 S.W. 828
• Parties: RIGLEY v. PRIOR et al.
• Court: Missouri Supreme Court

233 S.W. 828

290 Mo. 10

RIGLEY v. PRIOR et al.

No. 22136.

Supreme Court of Missouri, Division No. 2.

June 23, 1921.

Rehearing Denied July 19, 1921.

Motion to Transfer to Banc Denied August 8, 1921. Stipulation as to Costs Allowed October 6, 1921.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by George Rigley against Edward B. Prior and others, receivers of the Wabash Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed on condition of remittitur.

N. S. Brown and Homer Hall, both of St. Louis, and Sebree & Sebree, of Kansas City, for appellants.

Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent.

WHITE, C.

An action for personal injuries. The plaintiff recovered judgment in the circuit court of Jackson county, November 21, 1919, for the sum of $12,500. The plaintiff was in the employ of the defendant and lived north of the Missouri river about seven miles east of Kansas City, at or near Randolph, in Clay county. About 7:30 in the morning, January 19, 1914, he boarded a hand car with a crew at Randolph and started westward to repair some track between that point and Kansas City. The crew consisted of a Mr. Anderson, who was foreman, the plaintiff, and four other men. The plaintiff assisted in propelling the hand car. The morning was very foggy; the men could see a distance of only about 20 or 30 feet ahead. They had proceeded a mile or more westward from Randolph and had crossed what are termed the twin bridges when a Wabash train coming from the west in the fog ran upon the hand car and knocked it off, killing all the other men, and inflicting injuries upon the plaintiff, for which he brings this suit.

The plaintiff introduced evidence to show that it was usual for heavy fogs to hang over the track along the river at that point at that time of year; that it was the custom for trains passing through the fog at such times to sound the bell continuously, blow the whistle at frequent intervals, and run slowly; running slowly meant 10 or 12 miles an hour. Across the river from Kansas City, and about 5 miles west of Randolph, is what is termed block 223, whence signals were sent to Randolph indicating trains in the block. While the crew was waiting at Randolph a train was in the block, and they waited until it passed eastward before starting. There were two parallel tracks used by the Burlington, the Rock Island, and the Wabash Railroad Companies. The trains on those tracks "used the north track going west and the south track going east. The hand car was on the south track when met by the train going east. Shortly before the collision a train on the north track going west passed the hand car.

The plaintiff testified that as they proceeded he and the crew were listening for trains and heard no bell and no whistle from the train which ran them down. He testified that he could have heard the whistle half a mile and had heard it that distance; that he was listening and was in a position to hear the bell and the whistle. Other evidence was offered by the plaintiff to show that crews on hand cars going through the fog always listened and watched for trains that might cause them trouble.

The train was running at the rate of about 25 miles an hour. The defendant introduced evidence to show that the whistle was blown at intervals of about two or three minutes, and once or twice after the train had passed the Milwaukee bridge, which was about a mile and a quarter west of the place of collision, and that the bell was rung continuously. On that evidence the jury returned a verdict, judgment was rendered as stated, and the defendant appealed. On a former trial a verdict was returned for $4,500, and on appeal to the Kansas City Court of Appeals the judgment was reversed, and the cause remanded.

I. The appellant asserts that the judgment should be reversed because the plaintiff changed his testimony from what it was at the first trial. On appeal from the first trial (Rigley v. Wabash R. R. Co. (App.) 204 S. W. 737) the Kansas City Court of Appeals held that the plaintiff could not recover on two grounds: First, because there was nothing to show that the plaintiff belonged to the crew of that car or why he was on it; he appeared merely to have been there with no suggestion that he was ordered there; his duties as an employee of the railroad company were those of trackwalker, and therefore he was not in the line of his duty at the time of his death. Second, he could not recover, because, being a trackwalker, it was his duty to look out for trains.

In his testimony at the last trial the plaintiff said he had been at work for the company for 12 or 14 years; on the morning of the injury he was engaged at track work, was working on that section repairing the track; that his business consisted of walking the track, but on the morning of the injury he was working as track repairer, a section man; that a trackwalker walks the tracks and he never walks the track on a hand car; he had worked on that particular section for six or seven years, and besides being trackwalker he did section work; section work consisted in going out on the track with a gang, laying rails, or doing anything to keep the track up. He further testified that on the morning of the injury he with the crew was going to repair track near the Milwaukee bridge, and he knew beforehand what was to be done there. The evidence showed that before starting from Randolph the foreman went into the station and talked to the station agent, and that it was customary for the foreman in such case to ascertain about the trains. The plaintiff himself was not permitted to testify as to any orders given him by the foreman because the foreman was dead at the time of the trial. It was shown by the two sons of the plaintiff who testified, and who were not present at the former trial because they were with the A. E. F. in France, that plaintiff's work consisted of going over the track and working on the track and going out en a hand car for that purpose, and that he put in a part of his time as a section man. One witness for the plaintiff said he was present in Randolph in the morning and saw the hand car when it started; he knew Mr. Anderson, the foreman; he saw the crew put the car on the track and get on the car and heard Mr. Anderson instruct Rigley to go on; he saw them putting the tools on the car; he heard Anderson say, "Come on boys, let's go; everything is clear; everything will be safe," and they all got on the car, including Rigley, and moved off. This evidence, and it is uncontradicted, sufficiently shows that the plaintiff was in the line of his duty that morning, and that he was not working as a trackwalker.

The point made by appellant is that the plaintiff changed his testimony from the first trial, where he testified that he was a trackwalker. On cross-examination at the first trial Rigley, in answer to leading questions of defendant's counsel, testified that his business was to walk along the track and see that the track was in good condition, and that was all he did; that he walked up and down the track and looked at the rails and bolts and everything, to see that it was in repair, and if it was not in repair he reported it to some one else; it was not his duty to repair it.

In redirect examination the plaintiff showed he had also testified on the former trial that it was a part of his duty to go down on that hand car that morning, and that he was on duty at that time.

It is claimed that his present testimony so changes what he swore then that he ought not to recover.

This court has held that, if a plaintiff on a second trial, without a reasonable explanation, changes his testimony from that given at the first trial as to facts material to his right of action, he ought not to be credited with telling the truth, and ordinarily should suffer nonsuit. "Steele v. Railroad, 265 Mo. loc. cit. 110, 111, 175 S. W. 177. In this case the statement of the plaintiff, where he said he was a trackwalker and that was all he did, and that he reported repair work to some one else, were all in answer to leading questions asked by defendant's counsel. He answered simply "Yes, sir," and "No, sir," to the questions asked. He said at the same time that it was his duty to go out on a hand car that morning.

The evidence at the present trial sufficiently shows that, while he was a trackwalker, he had the additional duty to assist in repairing the track; that he did section work also as a part of his regular work. This was shown by witnesses other than the plaintiff. No attempt was made by defendant to show that it was not true, and defendant must have known whether plaintiff's duties included section work or not. The question at issue was whether he was in the line of his duty at the time he was injured. The evidence showed without contradiction that he was.

If on the former trial the plaintiff was induced by the skillful cross-examination of defendant's attorney to make statements contrary to the facts, he should not be nonsuited for telling the truth about the matter now.

II. Appellant claims the demurrer should have been sustained because there was no proof of actionable negligence on the part of the defendant. The evidence showed without contradiction that there was a heavy fog the morning of the accident, and that such fogs were of frequent occurrence along the river at that point; that it was necessary for section men to pass along the track in foggy weather in a hand car, and that hand cars were to be expected upon the track; that it was the custom for trains running through such fogs to run slowly, 10 or 12 miles an hour, sound a whistle at frequent intervals, and ring the bell continously. The defendant objected to the word "custom," but all defendant's witnesses testified that it was the uniform "practice" to blow the whistle and sound the bell at such times. One of plaintiff's witnesses said it was the...