Taber v. Missouri Pac. Ry. Co.

• Decision Date: 15 May 1916
• Docket Number: No. 17320.,17320.
• Citation: 186 S.W. 688
• Parties: TABER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

186 S.W. 688

TABER v. MISSOURI PAC. RY. CO.

No. 17320.

Supreme Court of Missouri, In Banc.

May 15, 1916.

Appeal from Circuit Court, Jackson County; O. H. Lucas, Judge.

Action by Margaret L. Taber, guardian of Harry H. Small and others, minors, against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Edw. J. White, of St. Louis, and Thos. Hackney, of Kansas City, for appellant. Cowherd, Ingraham, Durham & Morse and Hale Houts, all of Kansas City, for respondent.

BROWN, C.

Petition filed September 21, 1910, in said court stating that the respondent is guardian of Harry H. Small, Grace L. Small, and Margaret G. Small, minor children of Charles H. Small, deceased, and setting forth her appointment as such guardian by the probate court for Jackson county. It states: That Charles H. Small was employed by the defendant as a switchman in the East Bottoms switchyards of defendant, in Kansas City, Mo., where it was his duty as such switchman to aid in cutting up and making up trains and switching and coupling cars under the supervision of a switch foreman. That about 8:45 o'clock a. m. on April 19, 1910, while he was engaged in switching cars on track No. 5 in said yard, by taking out loaded cars and returning empty ones to the said track, and two of the empties which had been so returned were running slowly by gravity down said track, which was slightly inclined toward the west, the foreman directed him by signal to prepare to couple them up with six other empty cars being brought back by the engine to said track, and the foreman also signaled him that the six cars would be "shoved in" on said track 5 for coupling; that is to say, they would be brought in attached to and under control of said engine, and not cut loose and permitted to run by gravity. That said Small, as his duty was upon said signal, "immediately proceeded to prepare to make the coupling with said two cars which were still moving along as aforesaid. That the drawhead, or coupling device of the east or rear car, being the one to which the coupling was to be made, was out of repair and not in working order, so that it was necessary for the said Charles H. Small in obedience to said foreman, and in line of his duty as said switchman, to walk (and he did walk) along on the said track following just behind said car as it moved along for the purpose of adjusting said coupling device in order to make said coupling. * * * That while said Chas. H. Small was so endeavoring to adjust said coupling device, the defendant negligently and carelessly detached, or caused to be detached, the said six cars from the engine aforesaid, and shunted them in on said track 5, and negligently and carelessly allowed and permitted said six cars to run down said track without any warning to said Chas. H. Small and contrary to the signal information theretofore given him by said foreman. That said Chas. H. Small had no knowledge of the approach of said cars from his rear while he, with his back turned, was endeavoring to adjust the coupling device as aforesaid. That said six cars, by reason of the negligence and carelessness as aforesaid of defendant, were left to gravitate down upon the said Charles H. Small while he was in the position aforesaid and crushed him against the said drawhead cars which he was following and thereby killed him almost instantly. That it was the duty of defendant, its officers, agents, and employés, to warn said Charles H. Small of the approach of said six cars in the manner aforesaid. That it was the custom in coupling cars that were `shoved in' to keep them attached to and under the control of the switch engine as aforesaid, and not to make the coupling until signaled by the switchman actually making same that he was ready and in the clear." It then proceeds to state that Small relied upon said custom and manner of doing the work, and that the negligence and carelessness of the defendant in disregarding it and failing to warn him resulted in his death; that he was a widower about 42 years of age; that his wife died on or about May 10, 1909; and that he left surviving him the minor children above named, and concluded as follows:

"Wherefore plaintiff says a cause of action has accrued to plaintiff as guardian of said minor children, and that the amount which plaintiff is entitled to recover is $10,000.

Wherefore plaintiff prays judgment against defendant for $10,000 and costs."

The defendant demurred generally, and after the overruling of the demurrer filed its amended answer: (1) Denying "that Margaret L. Taber is the duly appointed guardian for Harry H., Grace L., and Margaret G. Small, as alleged in the petition"; (2) alleging generally that Small's death "was due to his own carelessness and negligence directly contributing thereto and for which the defendant was in no way responsible"; and (4) that the death of Small was due to a risk incident to his employment and assumed by him by written contract to that effect.

The plaintiff replied by general denial.

The evidence tended to show, and, so far as the physical situation goes, is undisputed, that the place where the accident happened that resulted in the death of Mr. Small was a trainyard of the defendant railway company consisting of 19 parallel tracks running west from the lead which communicated with them, and numbered consecutively from south to north. Track No. 5 was laid on a very slightly descending grade from east to west, so that cars shoved upon it and released would continue to move by gravity.

At about 8 o'clock on the morning of the accident, train No. 53 was to be made up for the west on track 9, and among other tonnage was to take 14 loaded cars from a coupled string of 42 mingled loads and empties which stood on track 5. A switch engine, with the crew to which the deceased belonged, consisting of the engineer and fireman, one switchman who followed the engine and released cars, the deceased, called the long field man, whose duty it was to attend to the switches and other work farthest removed from the engine, and another switchman for the short field, together with the foreman, was assigned to this work. To perform it, it was necessary for the engine to go onto No. 5 track, couple to a drag of 25 cars from the 42 which stood there, pull it out onto the lead, then shove it into No. 9 track, which was 150 feet north of No. 5 in a direct line and 220 feet along the lead, where they left all the loads in the rear coupled to No. 53. They then pulled the remainder of the drag clear of No. 5 switch, and put three empty cars, which came next on that track where they continued to run slowly down the track. The drag then pulled out and again went in on No. 9 track, coupling to No. 53 all loads behind the next two empties, which were pulled out and started down track five. They then went back to track 9, and left the remaining loads coupled to 53, leaving six empties attached to the engine. These they pulled out of track 9 and up the lead to clear the switch to track 5, where it stopped, standing ready to push its cars onto track 5 to be coupled to the two that were then moving slowly down that track after the first three that had been thrown in. The lead was clear to a point beyond track 9. Mr. Kay, the switchman who told this story to the jury, stood just outside the switch to track 5, ready to throw the empties in. Mr. Lonegan, the foreman, stood about 10 feet away on the inside of the lead, while the deceased was right on track 9 where he had been coupling the loads, the three men being within plain sight of each other, when the movement began which resulted in the death of Mr. Small. Mr. Lonegan then signaled Mr. Small that he was going to shove in on track No. 5, and to couple up. The latter walked straight across to No. 5 track, 150 feet, stepped behind the two cars last released, and still moving slowly down the track, and, finding the coupler out of order so that the jaws would not open, walked behind it trying to open them. While he was doing this, the engine shoved its six cars two or three car lengths in on track 5, gave them a kick, that is to say, increased the speed of the engine and released them, and they went down the track at a speed of 10 or 12 miles per hour. It was, the evidence tended to show, a rule or custom in the performance of such work that when cars were shoved into a track attached to the engine, for the purpose of being coupled to other cars, to stop the engine before coming in actual contact with the coupling, and wait for a signal from the switchman making the coupling, to proceed. Mr. Lonegan, the foreman of the crew, was a witness for defendant and told the story of these movements in his testimony. He denied that he had given Mr. Small any signal whatever directing him to go across to track 5, or to couple the cars to be placed on that track; but that, on the contrary, he had, before the movement began, directed him in the following words: "Charlie, anything that we throw that are held back on No. 5, let them go to hell." He also stated that he never saw Mr. Small alive after he saw him standing on track 9, and that had he sent him in on track 5 to do the coupling he would have waited for a signal before pushing in the cars.

Should it be necessary to make further reference to the testimony, we will do so in the course of the opinion. At the close of the plaintiff's evidence, the defendant asked a peremptory instruction for a verdict, which was refused.

At the close of all the evidence, the court, at the request of plaintiff, gave the jury, among others, the following instructions of which the defendant complains.

"(1) The court instructs the jury that if you find and believe from the evidence that Harry Grace, and Margaret Small are all the minor children of Charles H. Small, deceased, and that at the time of his death he left no wife surviving him, and that plaintiff is the appointed curator...