Smelser v. Missouri, K. & T. Ry. Co.

• Citation: 262 Mo. 25,170 S.W. 1124
• Decision Date: 13 October 1914
• Docket Number: No. 16441.,16441.
• Court: Missouri Supreme Court
• Parties: SMELSER v. MISSOURI, K. & T. RY. CO.

170 S.W. 1124

262 Mo. 25

SMELSER v. MISSOURI, K. & T. RY. CO.

No. 16441.

Supreme Court of Missouri, Division No. 2.

October 13, 1914.

Rehearing Denied November 24, 1914.

MASTER AND SERVANT (§§ 213, 240)—LIABILITY FOR INJURIES — CONTRIBUTORY NEGLIGENCE.

A railway brakeman, after coupling cars standing upon an elevated track, the sides of which cars were about seven inches from the wall of a number of coal chutes, stepped into this space between the cars and the wall and signaled the engineer, who, in response to the signal, moved the cars, crushing and killing the brakeman. He was an experienced brakeman, had worked for three months on the particular division on which such elevated track and coal chutes were situated, and had frequently coupled cars at that point. It did not appear that the space in question was ever used or intended to be used by brakemen, while it appeared, on the contrary, that it was the custom of brakemen, after coupling cars, to go upon the car before giving the signal to move. Held that, as the brakeman must have known the relative locations of the track and the wall of the chutes, and must have known that the space was not intended for the use of brakemen, he was guilty of contributory negligence and assumed the risk of injury from the conditions and dangers incident to his employment, which were not obscure, but open, obvious, and apparent.

Appeal from Circuit Court, Howard County; Alex. H. Waller, Judge.

Action by Joseph E. Smelser, administrator, against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Jamison, of St. Louis, for appellant. Samuel C. Major, of Fayette, and Frank W. McAllister, of Paris, for respondent.

WALKER, P. J.

Plaintiff, as administrator of the estate of James E. Reilly, deceased, brought suit against defendant, a railway company, in the circuit court of Howard county, under section 5426, R. S. 1909, for $10,000 damages for the death of said Reilly through the alleged negligence of the defendant. Upon a trial, a verdict and judgment was rendered in favor of plaintiff in the sum of $8,000, from which defendant appeals.

James E. Reilly at the time of the accident, and for three years prior thereto, had been employed by defendant as a railway brakeman on one of its trains running from Hannibal to New Franklin. On the night of July 5, 1909, while in the discharge of his duty as a brakeman, at Wilcox, a coal station, he was directed, with the aid of the engineer, to take two empty cars from an elevated track opposite certain coal chutes and set two other cars loaded with coal thereon, and in so doing he was caught and crushed to death between one of the cars and the wall of the coal chutes.

Defendant's track, on the platform opposite the coal chutes, was about 14 feet above the level of the ground. The level portion of same, about 200 feet long, was reached by a switch track laid on an incline formed of trestle work. At the north end of the platform were six coal chutes. These chutes extended above the elevated track eight feet, and each was provided with a trapdoor to load coal into tenders of engines on the main line. The back of the chutes presented a solid wooden wall adjacent to the back of the platform or elevated track. The height of the wall above the platform was something more than six feet. The track on this platform was parallel with the wall; the nearest rail of same being about 37 inches from the wall. The distance from the outer edge or side of a car when on this elevated track, to the face of the wall, was 7 inches. On the opposite side of the track from the wall, the body of a car, when on the elevated track, extended over the full width of the platform. The cars were provided with automatic couplers, and when the engine backed up to the first car, as directed by Reilly, it coupled without difficulty, but the coupler failed to work on the second car, and Reilly went over or through the cars, evidently open coal cars, and got down between them to open the coupler. This he did, and, instead of climbing into the car and signaling the engineer to move the engine, he stepped out, between the track and the wall of the chute, and signaled the engineer with his lantern, and the latter, responding thereto, moved the cars, with the result above stated.

The contention of the plaintiff is that the defendant should have furnished a space sufficiently wide between the outside of the car and the wall to enable one, after coupling cars, to stand there in safety, or, in other words, that it was negligence on the part of the defendant to leave only 7 inches of space between a car on the elevated track or platform and the wall; that Reilly, although familiar with the location, was not chargeable with contributory negligence in stepping into this space instead of climbing back into the car before he gave the signal.

The petition summarized is as follows: Plaintiff alleges his appointment as administrator of the estate of James E. Reilly, and that he brings this suit as such; that deceased was an unmarried man, 22 years of age, who left surviving him no wife or minor child or children, but a father, mother, and brothers and sister as his next of kin; that at the station of Wilcox, on defendant's line of railway, it had constructed an elevated track reached by inclined trestle work, and had built thereon a platform elevated about 14 feet above the surface of the ground, over and upon which cars were moved by defendant for the transfer of coal from the cars into coal chutes; that said platform was built along the back of the chutes; that the back of the chutes extended about 8 feet above the elevated track and platform and was solidly boarded up, forming a dead wall for a length of about 40 feet; that the intervening space between the back of the chutes and the sides of cars standing on the tracks opposite thereto was not sufficiently wide to afford employés a safe place to work while engaged in coupling and uncoupling cars on said elevated track; that defendant had negligently failed to construct and maintain a platform, walkway, or passage on the side of said elevated platform opposite said wall, upon which defendant's employés might stand in safety when coupling or uncoupling cars on said elevated track, and while the same were being moved thereon, and by reason of the premises said elevated track, platform, etc., were unsafe for the use of the employés of defendant who were required, in the discharge of their duty, to go and be upon said elevated platform and track in moving cars to and from said chutes, and in coupling and uncoupling cars thereon; that deceased was a brakeman on one of defendant's trains, and, while in the performance of his duties as such, was directed to take two empty cars standing on the elevated track immediately opposite the coal chutes from the platform and place two other cars loaded with coal thereon; that it then and there became his duty to go upon said elevated track and platform and couple the engine with the said cars and couple the cars thereon together; that he had coupled the engine to the nearest car, and had gone to the end of the other car to make another coupling, and while so engaged at about the hour of 9 o'clock at night, on the 5th day of July, 1909, by reason of the aforesaid negligence of defendant he was caught in the narrow space between the side of the car coupled to the engine and the back of said coal chutes, and his body crushed and such injuries inflicted that he then and there died. Plaintiff in his prayer states that the death of said Reilly was caused by the negligence of defendant, and that plaintiff, as administrator of the estate of deceased, is entitled to recover the sum of $10,000 by reason of said death.

Defendant demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action; that it affirmatively appeared on the face of the petition that deceased was guilty of contributory negligence; that he had full knowledge of the conditions and dangers incident to his employment, which were open, obvious, and apparent to him; and that he had assumed the risk of any injury sustained. This demurrer was overruled, and defendant answered over, first, by general denial, and further that whatever injuries deceased sustained, if any, were occasioned by his own negligence contributing directly thereto, in that he went upon the elevated track, and, after he had made the coupling, he negligently got upon the platform between the cars and the wall of the chute while the cars were being moved, instead of putting himself in a position of safety by getting upon the car before the same was moved; and further that he negligently placed himself on the side of the car next to the wall, and gave a signal for the moving of the engine necessary for the coupling of the cars, and in so doing placed himself in a position of danger; that he was further negligent in giving signals with his lantern for the movement of the engine and cars while standing between the wall and the sides of the cars instead of placing himself in a position of safety before giving the signal, as he might have done, from one of said cars; that he was further negligent in taking his position on the side of the platform next to the wall, where he was in danger of being crushed, instead of placing himself in a position of safety upon one of the cars, and giving a signal therefrom; that by virtue of his contract of employment it was the duty of the deceased to couple cars elsewhere, as well as upon defendant's elevated track; that he was an experienced brakeman, who had frequently before the accident coupled and uncoupled cars at nighttime, upon this elevated track, and at other tracks of similar character; that the dangers, if any, were open and obvious; and that by reason of the premises he had assumed the risk of all injuries received on...