Rigley v. Wabash Ry. Co

• Decision Date: 10 June 1918
• Docket Number: No. 12877.,12877.
• Citation: 204 S.W. 737
• Parties: RIGLEY v. WABASH RY. CO
• Court: Missouri Court of Appeals

204 S.W. 737

RIGLEY v. WABASH RY. CO

No. 12877.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Jackson County; Daniel E, Bird, Judge.

"Not to be officially published."

Action by George Rigley against the Wabash Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Sebree, Conrad & Wendorff, of Kansas City, for appellant. Atwood & Hill, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for damages resulting from personal injuries received in a collision between one of defendant's freight trains and a hand car upon which he was riding. He recovered judgment in the trial court. At the time and place of the collision there was a heavy fog. The negligence charged in the petition upon which the cause was tried, and submitted to the jury was that defendant's servants, "having in charge the train colliding with the hand car, failed and neglected to frequently sound the bell and whistle in running through the fog."

In order to maintain a cause of action plaintiff must allege and prove that at the time of his injury he was engaged in the "line of his duty to defendant as his employer. Stagg v. Weston T. Co., 169 Mo. 489, 498, 69 S. W. 391; Chamlee v. Planters Hotel, 155 Mo. App. 144, 152, 134 S. W. 123; 4 Thompson on Negligence, § 3907. He makes that allegation expressly, but fails altogether to prove It. The evidence in his behalf consisted chiefly in his own testimony. It showed that at about half past 7 o'clock in the morning of the 19th of January, 1914, he was on a hand car with four other men proceeding westward from a station called Randolph. There is nothing to show that he belonged to the crew of that car, or why he was on it. He merely appears to have been on there with no suggestion that he was ordered there, or what he was expected to do while there, though he did state that he was working one of the propelling handles of the car. But the reason for this absence of evidence appears from his affirmative testimony as to what his duties were, from which it appears they had no connection with a hand car. He stated, explicitly, a number of times, both on direct and cross examination, that his duties were those of a "trackwalker," who "walked up and down the track and looked at the rails and bolts; made a close inspection of the track to see that it was in repair"; and his "business was to walk along the track and see that the track was in good condition—if there was anything wrong with the track"; and that "that was all he did;" and if it was not in repair he reported it; that it was not his duty to repair defects he found; he ...