Tetwiler v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 29 February 1912
• Citation: 145 S.W. 780
• Parties: TETWILER v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

145 S.W. 780

TETWILER v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

Motion for Rehearing Denied March 29, 1912.

DEATH (§ 58)—CONTRIBUTORY NEGLIGENCE— PRESUMPTION.

In an action for negligent death of an employé, presumption that decedent used due care for his own safety is indulged in only in the absence of evidence as to the fact of due care.

Appeal from Circuit Court, Butler County.

Action by Charles W. Tetwiler, Thomas Allen's administrator, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This is an action under section 2864, Revised Statutes 1899, for the death of Thomas Allen, an employé of defendant, who is alleged in the petition to have been killed while passing between two of defendant's uncoupled freight cars by the negligence of defendant in running one of the cars against him and crushing him between them. The answer was a general denial, a plea that the deceased was employed to work in and about the defendant's roundhouse and yards at Poplar Bluff and upon and about its engines, and that, in accepting such employment, he assumed all the risks incident thereto, and a plea that his death was the result of his own negligence in attempting to cross one of the railroad tracks in the yard in front of a moving train. The evidence tended to show that the Poplar Bluff yards were extensive, consisting of 11 or 12 tracks, counting from the west side, then a shanty or shack consisting of a small room provided for the protection of the men from the weather. One witness, the engineer, testified that "it was put there for the protection and convenience of the fire knockers," who kept the oil for their torches in it, and ate their lunches there. Another witness, himself one of the fire knockers, describes it as "the house where we stay in from the time we go from one engine to another." On the east side of this shanty was the track on which the accident occurred. Bad order cars were set and repaired on it. On the east side of this track were two others with the coal chute, which was directly opposite the shanty, between them. The track in question approached and passed the shanty from the southwest on a curvature to the left to its connection north. The accident occurred at 11:30 o'clock in the night of January 9, 1908. The deceased was a "fire knocker," his duty being to draw the fires from locomotives as they came in from their runs, and take them to the roundhouse. The nature of this work is such that it is done in pairs, and he and David Sheets, a witness, were "partners" in it. Their duties were principally at the coal chutes opposite the shanty, where engines were coaled and the cinder pits were situated. The roundhouse was in the neighborhood of 100 yards in a southeasterly direction from the shanty, so that in approaching the latter from it one would be approaching diagonally the railroad track.

At the time of the accident, the deceased and his partner had taken an engine to the roundhouse, and were returning to the shanty, where they intended to eat their midnight dinner. From 16 to 20 cars were standing on the track in question, where they had been put in from the north, and an opening left in about the middle of the string opposite the shanty, variously stated to be from 3 to 6 feet wide. The car north of the opening was a box car, upon the south end of which the carpenters had been at work that day putting in new "bumpers." The drawbar had not yet been replaced, so that the car could not be coupled to another. At the south side of the opening was a bad order coal car loaded with coal. Allen and his partner approached this opening with lighted torches. An engine had been backed in at the north end of this track, and was slowly working south, running at the rate of about three miles per hour when in motion, without either ringing the bell or sounding the whistle when starting, or stopping, or at any other time, picking up cars as it came to them, and, after making the coupling, starting for the next one. The approaching knockers could not see the engine because of a box car behind its tender, and its headlight was directed away from them, but the engineer from his cab could and did see the torches which they carried until they had approached to within 30 feet of the opening. There were, according to the witnesses who testified on that question, except the engineer, no switchmen visible on the east side of the track, which was the outside of the curve, nor on the cars, and one of them said that the switchmen came up from the west side after the accident, while the engineer testified that he was taking signals from his (the east) side of the cab. The two fire knockers did not stop when they got to the opening, but entered it, and, as they were passing through, the "switch engine hit some cars above, and caught Allen between the cars," and crushed him so that he died in about half an hour. Rule 30 of the Standard Rules of the St. Louis, Iron Mountain & Southern Railway Company was introduced. It reads as follows: "The engine bell must be rung when the engine is about to move." After the plaintiff's evidence was in, both parties rested, and the defendant asked the court to peremptorily instruct in its favor, which was refused. The court then, at its request, instructed the jury, among other things, that the deceased, "by engaging in the employment in the yards of defendant, in Poplar Bluff, assumed and took upon himself all the risks incident to such employment, among which were the risks of being struck by the cars while attempting to pass upon and over the tracks of the defendant"; and also "that it was the duty of Thomas Allen, before attempting to pass between the cars, to both look and listen, and exercise due caution to ascertain whether the cars were about to be moved; and, if you find that there were any obstructions which prevented him from seeing whether they were moving, then it was his duty to stop and listen before attempting to pass between the cars, and, if you find that by waiting or exercising care on his part he could have ascertained that the cars were about to be moved and that he failed to exercise such caution and his death resulted in consequence of his being struck by the cars, then your verdict must be for the defendant." The verdict of the jury was for the defendant, and plaintiff has taken this appeal.

Hill & Whaley, for appellant. M. L. Clardy and James F. Green, for respondent.

BROWN, C. (after stating the facts as above).

1. The appellant assigns for error the giving of certain instructions on behalf of the appellee, the defendant below, and insists that the judgment against him should be reversed on that ground. The appellee meets this position with the claim that, although the evidence tended to prove negligence on its part contributing directly to the injury which is the foundation of the suit, it also proved conclusively that the appellant assumed the risk of this very accident in undertaking to perform the act from which it resulted. If this contention proves to be well founded, it will not, of course, be necessary to examine the errors assigned by the appellant. Although the issues were submitted to and determined by a jury, no evidence was introduced or offered by the defendant. It must not be assumed, however, that in electing to stand upon the case made by plaintiff it waived any advantage, for every witness shown to have known facts pertinent to the accident, all of them employés of the defendant, was introduced by the plaintiff, and subjected to cross-examination. In this process the application of the method known in therapeutics as suggestive treatment left nothing to be desired.

In defendant's argument stress is laid upon the assumption that at the time of the accident the plaintiff's intestate was crossing the railroad track upon an errand personal to himself, and unconnected with his employment by defendant. This assumption is not justified by the facts. All the testimony upon the subject tends to prove that the building was constructed for just such purposes as the deceased and his companion were going to use it for at the time of the accident. It includes the direct statement that it was designed for the protection and use of these very employés whose work was immediately across the track upon which the accident occurred. It was not only a humane provision on the part of the company, but it is evident that it was consulting its own interest in providing shelter from the inclemency of such weather as was constantly to be expected at the season the accident occurred, and a convenient and safe storage for oil and other things required in the performance of the work. The shanty, for all the purposes of its installation, was as much a part of the railway plant as was the coal chute across the track, around which these men worked; and it was as much the duty of the defendant to protect the men in its use as in the performance of any of their other duties. The crossing of the track in question having been made not only a necessary but an indispensable incident to its use, it devolved upon the defendant to see that its comforts and convenience should not become bait to a trap at its entrance. A general rule of the defendant provided this protection in a measure which would seem to be sufficient under ordinary circumstances. The printed rule, in the hands of its enginemen, provided that "the engine bell must be rung when the engine is about to move." The defendant had peculiar duties growing out of its relation to its employés, none of which were more important than that which required it to use reasonable care to furnish them a safe place to work, and in no situation is the performance of this duty more important than in an active railroad yard, where they are constantly menaced by the death dealing appliances of the...