The United States Express Company v. Everest

• Decision Date: 06 January 1906
• Docket Number: 13,936
• Parties: THE UNITED STATES EXPRESS COMPANY v. T. J. EVEREST
• Court: Kansas Supreme Court

83 P. 817

72 Kan. 517

THE UNITED STATES EXPRESS COMPANY v. T. J. EVEREST

No. 13,936

Supreme Court of Kansas

January 6, 1906

Decided January, 1906.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Injury to Telegraph Messenger--Liability of Express Company. Under the circumstances of this case it is held, that an express company engaged in unloading upon a truck express matter from a car standing upon a railroad-track in the union depot at Kansas City, Mo., was under no obligation to protect from injury, through a collision with the truck, a messenger of the Western Union Telegraph Company who was riding by permission of the pilot upon the steps of the rear car of an empty passenger-train backing into the depot upon an adjacent track which the truck obstructed.

Karnes, New & Krauthoff, A. L. Berger, and Loomis, Blair & Scandrett, for plaintiff in error.

Getty, Hutchings & Dean, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.

The plaintiff recovered damages for an injury to his seventeen-year-old son alleged to have been occasioned by the defendant's negligence. The injured party was a messenger of the Western Union Telegraph Company, whose duties required him to deliver messages in and about the union depot in Kansas City, Mo., and upon trains arriving and departing from that station, and to bring mail from the post-office, three blocks away.

On the morning of the accident he went to the post-office and received a bag of depot mail. Instead of returning by the usual route he went somewhat out of his way to the railroad-track used by the Chicago, Rock Island & Pacific Railway Company for access to the depot. There he found an empty train of that company waiting for a semaphore signal authorizing it to back into the depot to receive its load of passengers, baggage, express, and mail, preparatory to its departure westward. As the train commenced to move backward after receiving its signal he climbed upon the rear steps of the rear car, and deposited his mailbag upon the platform. The train was upon what is designated as track 5. As it approached the depot a Chicago & Alton passenger-engine was discovered some 250 or 300 feet ahead, standing upon track 6 and emitting clouds of steam which obscured all further view in that direction. This engine was attached to a late passenger-train, which had just arrived from the east.

Upon the arrival of trains the defendant's work of removing express matter from the cars begins, and employees are kept in waiting with trucks for that purpose. Tracks 5 and 6 are parallel and lie next to each other, track 5 being nearest the depot building. The space between the tracks, however, is narrow, and a truck of standard size placed lengthwise alongside of an express car on track 6, in the usual manner for unloading, obstructs the operation of trains on track 5. While one of the defendant's employees was engaged in taking express matter from the Chicago & Alton train referred to the rear of the Rock Island empty train emerged from the bank of steam and bore down upon his truck. The messenger boy, standing upon the lower steps of the moving car, tried to climb up to the platform, but was too late. The side of the car passed over the truck, and as it did so the truck carried away the car steps, and crushed the boy's foot so that amputation was necessary.

The plaintiff charged that the defendant was negligent in placing its truck upon track 5 at a time when the Rock Island train was due without stationing a sentinel to warn persons upon the train whose vision might be obstructed by the escaping steam of the presence of the truck. The defendant answered that it was not negligent; that it owed no duty to the boy at the time and place of the accident; and that his injuries were the result of his own carelessness.

The traffic in and out of the union station at Kansas City, Mo., is under the management of the Union Depot Company, which owns the buildings, grounds, and tracks. That company reserves to itself exclusive control over the entrance and exit of trains, and assigns to each railroad company using the depot a certain track for the purpose of loading and unloading its cars. The various express companies operate there under the same authority. There are no special instructions governing the use of tracks 5 and 6, but the servant of the defendant who was in charge of its truck at the time of the accident understands that trains have the right of way. No doubt this is true, since under all ordinary circumstances a truck ought not to block a train; and in any event it must be accepted as true for the purposes of this case. But the fact that the express company is required to remove its carriage in order that the railway company's carriage may pass does not render its occupancy of the track for the purpose of doing its work negligent merely because a train is due.

The two transportation companies are engaged in the business of serving the public in the same way, at the same time, and in the same busy place, and each is under the obligation of using due care toward the other. The operations of the express company are necessarily limited and guided by the arrival and departure of trains. The Rock Island empty train could not be loaded until it was brought into the depot and set for that purpose. The Chicago & Alton train could not be unloaded until it came in, and it was then the duty of the defendant to remove express matter as soon as trucks could be placed alongside of the express-car. This duty relates to trains which are delayed as well as to those which are on time. The express company finds its cars wherever the union depot regulations stop them, and in reaching those brought in by the Chicago & Alton it is necessarily compelled to infringe upon track 5. It is impossible to know the precise moment when an empty train Will be backed in. It may be delayed by obstructions or may be kept waiting for signals an indefinite period at the various semaphores along its route, and it would be unreasonable to require the express company to suspend its work altogether and refrain from unloading a waiting Chicago & Alton train until a detained Rock Island "back-over," as it is called, could arrive and pass. All persons using the depot tracks under the orders of the depot company must be held to know when and how the work of the express company must be carried on, and to know that it must place its trucks in dangerous proximity to track 5 when unloading Chicago & Alton trains. Therefore, trucks stationed to receive express matter from those trains are rightfully employed, and the defendant was guilty of no breach of duty on account of the fact that it was in effect using track 5 when the Rock Island train approached.

The Rock Island train in question was made up in the company's yards from cars cleaned and prepared for travel, and was sent to the depot, there to be turned over to the conductor and to receive its burden of passengers, mail, and express. Not only was the public forbidden to use it while on the way to the depot, but it was accompanied by an escort who was charged with the special duty of keeping people off of it. The escort carried a key to enable him to go through the coaches, and had no business except to prevent persons from undertaking to ride. The conductor did not become responsible for the train until after it had backed into the depot and stopped there.

The only other person allowed upon the Rock Island coaches was a pilot, who was stationed upon the rear platform of the rear car for the purpose of guiding the train into the depot. He was provided with an air-whistle with which to give warnings and an air-brake with which to stop the train. This brake worked with a small lever, applied to the entire length of the train the instant the lever was pressed down, and had the same power as the emergency brake. With it the pilot could stop the train as the engineer could stop it. The pilot's position was at the left-hand side of the platform, where the lever of the brake and the lever of the whistle were at his instant command. It was his duty to stop and hold the train for semaphore signals, to obey signals when received, to give signals to the engineer, to look out for pedestrians, vehicles, switching-engines and all kinds of obstructions, see that the train did not run into them, and, as occasion required, to use the whistle and the brake. His attention was entirely taken up with his duties.

When the messenger boy climbed upon the train he was perfectly familiar with the manner in which traffic in and about the union depot is conducted, even to minute details. He knew when and where to catch the train in question, knew it was empty, and was backing in to be turned over to the conductor knew the pilot was not a conductor or brakeman, and knew he was busy attending to duties of the pilot, which no one else could discharge. He testified that he asked if he could ride and that the pilot said "Yes." By riding on the steps...