Spotts v. The Wabash Western Railway Company
| Decision Date | 02 July 1892 |
| Citation | 20 S.W. 190,111 Mo. 380 |
| Parties | Spotts v. The Wabash Western Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court.
Statutory action by the widow of Mr. Wm. B. Spotts to recover damages for his death, occasioned by alleged negligence of defendant. Verdict and judgment for plaintiff. Defendant appealed.
The material facts are stated in the opinion.
Affirmed.
F. W Lehman and George S. Grover for appellant.
(1) Upon the undisputed testimony in this case the court should have instructed the jury to find for the defendant, as no negligence on the part of defendant's servants was proved. Sjogren v. Hall, 53 Mich. 274; Loftus v Ferry Co., 84 N.Y. 455; Moore v. Railroad, 28 Mo.App. 622; Railroad v. Shartle, 97 Pa. St. 450; Railroad v. Locke, 112 Ind. 404. (2) The court gave improper, and refused proper, instructions. Stone v Hunt, 94 Mo. 475; Patterson on Railway Accident Law, sec. 191, et seq.; Sweeney v. Railroad, 128 Mass. 5; Burns v. Railroad, 101 Mass. 51. (3) The court admitted improper evidence against the objections of defendant. Edens v. Railroad, 72 Mo. 212; Waldhier v. Railroad, 71 Mo. 514; Ely v. Railroad, 77 Mo. 34; Hipsley v. Railroad, 88 Mo. 348.
A. R. Taylor for respondent.
(1) The evidence was not only prima facie but conclusive of the negligence of the defendant causing the death. Walsh and his employes being engaged at and about defendant's tracks at the invitation of defendant and transacting business with the defendant, its servants owed them a high degree of care to avoid injuring them. "Active vigilance" is the measure of care due. 1 Thompson on Negligence, p. 461, note 3; Mark v. Railroad, 32 Minn. 212; Rolling Mills v. Johnson, 114 Ill. 63; Railroad v. Harwood, 15 Am. & Eng. R. R. Cases, 494. (2) The defendant was actually warned beforehand that Walsh and his employes were put in peril unless defendant's servants used care in putting in cars on tracks 7 and 8. This was sufficient notice that said employes were likely to be where they would be injured if the cars on track 7 were knocked beyond the end of the rails and across the surface of the street. (3) All the evidence showed that Spotts was not standing on track 7, but south of it. Therefore, appellant's contention that its servants throwing the cars on track 7 should have known of his presence on the track, before liability for the injury could ensue, is untenable. The following authorities sustain the proposition that the deceased (if on the track) was no trespasser, and the defendant owed the duty of active vigilance, including notice to him that the cars were to be thrown back on the switch: Railroad v. Goebel, 119 Ill. 524: Rolling Mills v. Johnson, 114 Ill. 63: Gessley v. Railroad, 32 Mo.App. 418; Jacobson v. Railroad, 42 N.W. 932: Railroad v. Hoffman, 67 Ill. 287: Pierce on Railroads pp. 275, 276, Moore v. Railroad, 85 Mo. 588.
Mrs. Spotts, the plaintiff, recovered statutory damages ($ 5,000) in the circuit court for the killing of her husband, and the defendant has appealed against that judgment.
The ground of the action, as indicated by the petition, is, shortly, that Mr. Spotts met his death by reason of negligent movements and handling of defendant's cars, and of its failure to observe city ordinances requiring the engine bell to be rung while cars are moving; that a man be stationed on top of the car farthest from the engine of any backing train, etc.
[SEE ILLUSTRATION IN ORIGINAL]
The defense put in issue the charges of negligence, and asserted contributory negligence of the deceased, which, in turn, was denied by a reply.
The plaintiff's evidence tended to account for the death of Mr. Spotts in this wise:
He was in the employ of Mr. Michael Walsh, who had a contract to furnish the necessary labor to unload cars, etc., for the St. Louis Grain Elevator Company, at the time of the accident, August 17, 1888. The place of the accident was on premises used by defendant, adjacent to the warehouse of the elevator company, on the wharf or levee near the foot of Ashley street, St. Louis. Its prominent features are shown at once by the accompanying diagram, offered in evidence by defendant, without objection.
The small parallelogram, crossed by track number 8, represents the car scales. Track number 7 ended, or disappeared from view and from use (by reason of earth or dirt covering it), at a point about opposite to and west of the scales.
A "string" of freight cars was standing on track 7, the last of which, toward the south, stood some two or three feet from the point where that track disappeared as stated. That point we shall hereafter refer to as the end of track 7, after this explanation of our meaning.
Mr. Walsh had twenty-two men engaged, on the date mentioned. They were unloading sacks of wheat from defendant's cars on track 8, and putting the sacks in the warehouse of the elevator company. When one car was unloaded, it was pushed by hand, northward, upon the scales to be weighed. The men were told to stand clear, while the clerk was weighing it. They did so. Spotts and some others took positions near the cars on track 7, a few feet south of the point where it ended. The space between those cars and that on track 8 was two and a half feet. Just then there was a sudden movement or jerk of the cars, southward, on track 7, which caught Spotts, threw or dragged him some fifteen or twenty feet beyond the end of that track, and inflicted injuries from which he died. That movement was occasioned by a switch engine of defendant backing south on track 7 to shift some of the cars.
All this occurred in daylight.
No warning of any sort was given of the movement described. Nor was there any man on top of the car farthest from the engine.
The plaintiff's relationship to the deceased was also shown.
The foregoing exhibits the substance of her case.
I. The first point is that these facts did not warrant the submission of the cause to the jury for any finding of negligence on defendant's part.
The place of the injury was part of the public wharf of St Louis, and the deceased and the gang to which he belonged were working, thereabout, for the elevator company, to which the contents of defendant's cars were consigned. Defendant had notice of the particular work which the gang had on hand. (We shall have occasion to mention that notice more...
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