Riley v. Kansas City Southern Ry. Co.

• Decision Date: 03 March 1914
• Docket Number: No. 16,222.,16,222.
• Citation: 165 S.W. 1043,256 Mo. 596
• Parties: RILEY v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

165 S.W. 1043

256 Mo. 596

RILEY v. KANSAS CITY SOUTHERN RY. CO.

No. 16,222.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

Rehearing Denied April 2, 1914.

1. NEGLIGENCE (§ 136)—QUESTIONS OF LAW OR FACT.

It is the rule in Kansas that where only one conclusion can be drawn from the undisputed facts negligence is a question of law, but if reasonable minds might differ it is for the jury.

2. NEGLIGENCE (§ 103½) — ACTIONS — LAW GOVERNING.

In an action for personal injuries sustained in Kansas, the Kansas decisions control the application of the rule in that state as to whether negligence is a question of law or one for the jury.

3. MASTER AND SERVANT (§ 240)—LIABILITY FOR INJURIES—CONTRIBUTORY NEGLIGENCE.

In Kansas one who goes upon or near a railroad track is bound at his peril to make diligent use of his senses of sight and hearing to detect the approach of trains, and, if he steps upon the track without looking or listening, he is guilty of such negligence as bars an action for injuries; but this rule does not apply to employés whose duties required their presence on the track and the performance of which necessarily precludes their paying the strictest attention to the approach of trains.

4. MASTER AND SERVANT (§ 240)—LIABILITY FOR INJURIES—CONTRIBUTORY NEGLIGENCE.

A railroad section hand working in a switchyard who, while a car was passing, stepped back near another track and stood there for two minutes without looking to see whether a switch engine, which he knew was at work in the yard and by which he was struck, was approaching, was guilty of negligence defeating a recovery under the law of Kansas, though the railroad company was chargeable with negligence in failing to give warning or keep a lookout; he not coming within the exception from the general rule as to looking and listening applying to employés whose duties require their presence on the track, as he was not at work at all when struck and had no duty to perform on the track on which the car which injured him was moving.

5. MASTER AND SERVANT (§ 248)—LIABILITY FOR INJURIES—CONTRIBUTORY NEGLIGENCE.

A railroad section hand working in a switchyard who, while a car was passing, stepped back near another track without looking for a switch engine which he knew was at work in the yard and was struck by it, could not recover under the last clear chance doctrine as applied in Kansas, since in that state the doctrine does not apply where plaintiff's own negligence extends up to and actually contributes to the injury.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Patrick Riley against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Cyrus Crane and Geo. J. Mersereau, both of Kansas City., Mo., for appellant. Charles A. Stratton, of Jefferson City, Hale, Dean & Higgins, of Kansas City, Kan., and Bird & Pope, of Kansas City, Mo., for respondent.

BLAIR, C.

A freight car being propelled by one of defendant's switch engines through the Armourdale, Kan., yards, struck and injured plaintiff as he stood near the track over which it was moving. This appeal is from a judgment for plaintiff.

Both parties pleaded the law of Kansas and offered in evidence decisions of the Supreme Court of that state. The question presented is the sufficiency of the evidence to support a judgment against defendant.

Plaintiff was in defendant's employ as a section hand and had worked in that capacity for various roads for 25 or 30 years, but he was injured on the fifth day after entering defendant's service. At the place the injury occurred there were five or six tracks, and plaintiff testified there "was lots of switching done in that yard," and that "they had switched around there a good deal every day before that." He testified that on the morning he was injured he and three others with the section foreman, Young, were putting some new ties in one of the tracks in the yard; that while so engaged a car was set in over the rail at the place at which he and another were working; and that being unable to proceed until this car was removed, which he understood would be done in a few minutes, he stepped back from the track on which he had been working and "stood there a little longer, in the same place, a couple of minutes, and got hurt." The car which struck him was moving eastward at the rate of four to six miles per hour, upon the track next south of that upon which plaintiff had been at work. Plaintiff said after he stepped back he "just stood there right by the car, for a minute or two, ready to go to work at the other tie; that he "stood looking at the ground at that time"; that he "was looking at the work"; that he knew there were several tracks south of that upon which he was working and did not look to see how close he was getting to the nearest one, and, after stepping back, did not look either east or west along the track, near which he stood, before the car struck him.

The day was clear, and there was nothing to obstruct plaintiff's vision in either direction along the track near which he stood when struck. There was evidence the engine and cars made no noise as they approached plaintiff and that no warning was given him of their approach. There is no evidence that any member of the switching crew saw plaintiff's danger until he was struck, and the section foreman and section hands did not observe it until the moment of the collision. There was some evidence of a custom of section foremen to warn the section hands, while at work, of approaching trains; but at the moment plaintiff was struck Young was several feet away, instructing other section hands in the work they were doing, and plaintiff says he did not see Young after stepping back from his work and before he was struck. It is clear, however, that Young, from the place where he was engaged, could have seen plaintiff.

Counsel agree that the law of Kansas must govern the disposition of this case. In that state the rule is that: "If only one conclusion can be drawn from the undisputed facts, the question of negligence is one of law. * * * If reasonable minds might differ upon that question, the jury must decide. * * *" Smith v. Joplin & P. Ry Co., 91 Kan. 26, 136 Pac. loc. cit. 934.

With respect to the application of this rule, the Kansas decisions must control in this case. In that state the general rule prevails as formulated by the encyclopedists: "Any one who goes upon or near a railroad track is bound, at his peril, to make diligent use of his senses of sight and hearing in order to detect the approach of trains, and if, in disregard of this duty to his own safety, he steps upon the track without looking or listening, * * * he is guilty of such negligence as to bar an action for the injury." The exception recognized by the same authorities is also recognized in Kansas. It is that the general rule stated does not "apply to employés whose duties require their presence upon the track, the performance of which duties necessarily precludes their paying the strictest attention to the approach of trains."

In Dyerson v. Railroad, 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207, one of the plaintiff's duties was to supply cars with ice which he procured from a box four or five feet north of the northernmost rail of a double track. The lowest of three steps leading down from this box was about two feet from this rail. Plaintiff had prepared some crushed ice and was standing west of the ice box awaiting the arrival of a car for which it was intended, when his foreman beckoned to him and pointed to the car which was to be iced, and plaintiff walked "between the ice box and the track to get his bucket of ice, reached it, took hold of it, and started to carry it to the car, and while on the lowest step and about to proceed across the track he was struck by the tender of a locomotive which was backing east on the north track at the rate of 15...