State v. Ellison

• Decision Date: 30 June 1917
• Docket Number: No. 20028.,20028.
• Parties: STATE ex rel. LUSK et al. v. ELLISON et al.
• Court: Missouri Supreme Court

196 S.W. 1088

271 Mo. 463

STATE ex rel. LUSK et al. v. ELLISON et al.

No. 20028.

Supreme Court of Missouri. In Banc.

June 30, 1917.

Motion for Rehearing Denied July 12, 1917.

Action by S. B. Brightwell against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. A judgment for plaintiff was affirmed by the Kansas City Court of Appeals (189 S. W. 413), and the State, on the relation of the defendants, brings certiorari against James Ellison and others, Judges. Record and judgment of the Court of Appeals quashed.

W. F. Evans, of St. Louis, and Cowherd, Ingraham & Durham, and Hale Houts, all of Kansas City, for relators. Calvin & Rea and George C. Coggburn, all of Kansas City, for respondent S. B. Brightwell.

GRAVES, C. J.

Certiorari to the Kansas City Court of Appeals, bringing up the judgment and opinion of that court in the case of S. B. Brightwell (Plaintiff), Respondent, v. James W. Lusk et al., Receivers (Defendants), Appellants. Brightwell's action was one for personal injuries, and was brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). Defendants were the receivers of the St. Louis & San Francisco Railroad Company. Plaintiff was foreman of a crew repairing tracks in the switchyard of the said railway in Kansas City, Mo. Plaintiff and his crew of three men were working on what was known as the "middle yard lead" in those switchyards. They had replaced a broken rail, and were thereafter engaged in raising the joints and filling up the low places with cinders. Jacks were used to raise these joints, and whilst the track was thus raised by the jacks, it was not safe to run cars and engines over them. When a certain switch crew with their engine and cars attempted to pass over this track, plaintiff warned or signaled them, and they waited until the jacks were removed and then ran on over the rails where the plaintiff's crew was at work. The same thing occurred a second time, and when this switch crew started to pass over this track the third time, plaintiff says that the engineer was looking toward the back end of his train, and not toward the front end, and that he, in attempting to signal the engineer, left his track, and, going to one side thereof in order to give the signal of warning, he was struck by a car coming from the opposite direction on what was called the "east yard lead" track. He says these tracks (middle yard lead, and east yard lead) were 8 feet apart. Defendants' evidence makes them 10 to 14 feet apart. At 8 feet apart, there was a clear space of 4 feet between passing trains. The petition charges as negligence: (1) The failure of the engineer running on the "middle yard lead" to keep a lookout for plaintiff's signals; and (2) the running of the car on the "east yard lead," "without having some person therein, and in charge thereof, aforesaid, to warn persons of its approach, or to stop same before allowing it to collide with persons who happened to be on the track." In the trial court the case was submitted to the jury on the negligence of the engineer only. The latter alleged negligent running of the car on the east lead track was eliminated. The plaintiff had judgment for $5,000, and the Kansas City Court of Appeals affirmed this judgment, and our writ was directed to this judgment of affirmance. Other details can best be stated in the course of the opinion.

I. As stated, the Court of Appeals held that the negligence of the engineer was shown by the facts, and that such negligence was the proximate cause of the injury. The relators here contend that this holding contravenes our rule as announced in a line of cases of which Degonia v. Railway Co., 224 Mo. 564, 123 S. W. 807, Cahill v. Railway Co., 205 Mo. 393, 103 S. W. 532, Nivert v. Railway Co., 232 Mo. 626, 135 S. W. 33, Rashall v. Railway Co., 249 Mo. 509, 155 S. W. 426, and Gabal v. Railway Co., 251 Mo. 257, 158 S. W. 12, are samples. Recollecting that the question passed upon is the alleged negligence of the engineer in not looking forward for a signal from plaintiff, let us compare the ruling with the doctrine of our cases cited, supra. Those cases hold: (1) That trackmen are under a duty to look out for their own safety; (2) that an engineer is not required to keep a lookout for trackmen in the ordinary operation of trains; (3) that the engineer has the right to assume that trackmen, although in a place of danger, will, in the exercise of their duty to protect themselves, remove themselves from such place of danger, before the train reaches them; (4) that it is only after the engineer discovers that the trackman is oblivious to his danger and is not going to retire to a safe place that the engineer is obliged to take steps to protect such trackman.

It will be noted that these cases also fix the liability of the master for the negligence of the engineer on the ground that such engineer knows of the danger to which the trackman is exposed, and knows, or should know by the exercise of care, that the trackman is oblivious to the threatened danger. In the case at bar the facts do not justify the conclusion that this particular engineer was entitled to a clear track. He knew these men were doing this particular work, because he had twice ran over this track and awaited the removal of the jacks. Whilst the question was properly raised by the trial court's refusal to give a peremptory instruction for defendant, yet if the injury to plaintiff had been caused by the negligence of the engineer, we cannot say that the ruling contravenes the cases cited. This engineer knew that he did not have a clear track. This, because he knew these men were placing jacks under the rail joints, and his track could not be clear. He might have had the right to expect his track to be clear of plaintiff and his crew, because it was their duty to be on the lookout, but he did not have the right to expect a clear running track, because of the knowledge he had of the work which was being done thereon. But the damage in this case was not occasioned by the running of the train over the track where plaintiff was working, nor where plaintiff was injured. The train was stopped before reaching the point where plaintiff and his crew were working. No injury was directly occasioned by the management of this train. This train did not collide with the plaintiff. As we gather from the case, the serious contention is that the failure of the engineer to be looking forward for a signal from the plaintiff occasioned the plaintiff to move to one side of the track to give the signal, and that this move resulted in plaintiff's injury. The real question is, Was the alleged negligence the proximate cause of the injury? The Court of Appeals said it was, and this holding is charged to be violative of holdings of this court. This question we take next.

II. Before discussing the question of proximate cause it might be well to dispose of a minor contention. In relators' brief under point 1, it is said:

"The decision of the Court of Appeals in holding that the relators owed plaintiff, a trackman, the duty to watch out for his safety upon the tracks, and particularly upon the east yard lead, is in conflict with all previous decisions of this court defining the duty owed by railroad companies to trackmen, and more particularly with the decision of this court in the cases."

The italics are ours. If the trial court or the Court of Appeals had undertaken to fix liability on the alleged negligent running of the car on the "east yard lead," then there might be substance in this claim. Neither court undertook to so fix liability. The trial court did not submit such an issue, nor did the Court of Appeals undertake...