Tibbels v. Chicago Great Western R. Co.

• Decision Date: 26 January 1920
• Docket Number: No. 12988.,12988.
• Citation: 219 S.W. 109
• Parties: TIBBELS v. CHICAGO GREAT WESTERN R. CO.
• Court: Missouri Court of Appeals

219 S.W. 109

TIBBELS v. CHICAGO GREAT WESTERN R. CO.

No. 12988.

Kansas City Court of Appeals. Missouri.

January 26, 1920.

Rehearing Denied February 17, 1920.

Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.

"Not to be officially published."

Action by Anna R. Tibbels against the Chicago Great Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kelso & Kelso and Ernest Engle, both of Grant City, and Shinabargar, Blagg & Elison, of Maryville, for appellant.

Du Boise & Miller, of Grant City, and W. C. Ellison, of Maryville, for respondent.

TRIMBLE, J.

The widow of Thomas C. Tibbels, deceased, brought this action under section 5425, R. S. 1909, for the wrongful death of her husband, caused by the defendant in making a "flying switch." From a judgment for $7,500 in plaintiff's favor, the defendant has appealed.

The charge in the second count, on which the verdict was returned, is that at the town of Sheridan, in Worth county, Mo., the defendant maintained, in connection with its main line, a switch track (hereinafter called the house track), lying north and south over a continuously traveled way running east and west across defendant's railroad, which said way, for more than 15 years prior to the date of the injury, had been, and was on said date, "continuously used by the public indiscriminately for public travel and passage afoot, to and fro, with the knowledge, leave, and acquiescence of said defendant railroad company"; that shortly before the 2d day of December, 1916, and for at least a period of 12 hours before the injury, defendant had left a number of freight cars standing on said switch or house track, so that the north end of said line of cars rested near and on the southern edge of said traveled way; that on said date defendant's servants, in charge of and operating a freight train, were engaged in taking three freight cars out of said train and putting them on said house track by means of a flying switch, that is, by starting the cars north along the main track toward the switch at such a speed that their own momentum would carry them to and over the switch and onto said house track; that the cars were caused to be moved at a great and dangerous rate of speed from the main line to and along the said side track, and, while so moving, suddenly, violently, and with great force collided with the south end of the said line of cars standing thereon, whereby the north end thereof was, without warning or signal, suddenly and with great force and violence thrust forward to the north across the south line of and into said traveled way, and there struck and killed plaintiff's husband, who was then and there lawfully traveling afoot over said side track in said way— all of which was charged to have been negligently done by the defendant's trainmen.

The answer, in addition to a general denial, set up that the death was due to decedent's contributory negligence, in that he was—

"trespassing upon the defendant's railroad track in its private switchyard and depot grounds at a place where he had no right or license to be, * * * directly in front of a freight car, which said decedent then and there well knew was about to be, or likely to be, moved in his direction in the execution of a flying switch, following a long-continued practice of the defendant's trainmen in said private switchyards, with which said decedent was well acquainted, and in being and in remaining upon said track in front of said freight car until the same struck and collided with him on said private grounds, * * * and also in that said decedent, for a long time prior to and up to the time he was struck and killed, could have seen defendant's engine and approaching cars in time to have avoided being struck, but failed to stop, look, or listen for same."

The depot grounds at Sheridan were 300 feet wide, and lay north and south with three tracks thereon; the main track lying farthest to the east, with the passing track parallel to and 25 feet west of it, and the house track parallel to and 29 feet west of the passing track. The line of standing cars—from 9 to 11 in number—was on the house track, which is the one on which the injury occurred. The stockyards, situated in the northern part of the depot grounds, were immediately west of the house track, and north of and abutting upon Lincoln street, as it existed upon the ground; said street being a prolongation of Lincoln avenue east across the railroad grounds to the western limits of the village, and thence it continued on east as a county road. Said street forms the main thoroughfare across the railroad into and out of town, for that part of the county and for the villagers to reach the pleasure grounds lying east of the railroad; the far greater portion of the village being west of the railroad. The depot is some 600 feet or more south of Lincoln street, and stands on the east side of the main track. About 380 feet more or less south of the depot is the south switch, leading from the main track to the passing track, and shortly from thence to the house track. Opposite the depot—that is, west of it, and west of the house track—is a lumber and coal shed; and a crossing extends from the north end of the depot west across the tracks to the lumber shed, connecting with a walk and road leading west into town, and also with a road leading northeast from the lumber yard. A grain elevator stood immediately west of the house track and slightly north of a point midway between the lumber shed and Lincoln street. The stockyards, grain elevator, lumber and coal sheds are all upon railroad ground. A platted street of the town, known as Railroad street, runs along the west side of the railroad grounds, and block 8 of the town lies immediately west of this street and south of Lincoln avenue. On the west side of this block, and not far south of Lincoln avenue, is a garage in which was a shop wherein decedent, Tibbels, maintained his headquarters.

For many years he had been buying hogs and shipping them to market in carload lots over the defendant railroad. He kept the hogs, while accumulating them into carload lots, in the stockyards, having always on hand a varying number which he had to feed and water twice a day, and many times had to go to the stockyards oftener than that. According to the evidence in plaintiff's behalf, for six years at least, it had been his unvarying custom twice each day to leave the back door of the shop and walk east, bearing slightly to the north till he reached Lincoln street as it existed on the ground in the pro longation of Lincoln avenue over the railroad grounds as above stated; said point where he reached Lincoln street being slightly west of the point where the house track entered upon Lincoln street in going north across said street to and past the stockyards. Decedent, after thus reaching the south edge of Lincoln street, would then cross the house track and turn north, walking between the house and Passing tracks, until he arrived at the stockyards which he would enter and there water his hogs and feed them from a corncrib he maintained therein. Upon completion of his task he would return to the shop by the same route over which he had come. So unvarying had been his route and custom that a path had been worn from the shop to the south edge of Lincoln street at the point just west of the house track as above described.

For several days prior to the date of the injury a number of freight cars had been standing on the house track, and, the day before the injury occurred, others were added, making a line of from 9 to 11 cars, the north end of which was at or slightly over the south end of Lincoln-street, as it existed on the ground over the railroad lands. (We speak of this line being the south line of the street as it existed on the ground, for the reason that the defendant says said line is not the south line of the street as established by the authorities in opening Lincoln street across the railroad grounds as a prolongation eastward of Lincoln avenue, which, on the plat of Sheridan, stopped at the west line of the railroad right of way. This claim, and the effect it should be allowed to have on the case, will be dealt with later on.) In addition to the string of 9 or more cars on the house track and south of Lincoln street, 2 others were standing on said house track just north of Lincoln street. According to the evidence of a witness for defendant, cars placed north of the street were thus separated from those south of it in order to avoid obstructing travel on said street.

On the morning of December 2, 1916, a freight train arrived at the depot from the south, having 3 loaded cars which were to be cut out of the train and set in on the house track. The engine and the 3 cars were detached, leaving the rest of the train on the main track at the depot, while the engine pulling the 3 cars went north on the main track past the stockyards to the north switch leading into the passing track, through which the engine entered, and then backed south, pushing the 3 cars down past the depot to a point on the main line 110 feet south of the switch opening off the main line into the passing and house tracks, as hereinbefore stated. The flying switch was then executed by the engine starting back north, pulling the 3 cars after it, until the cars acquired enough velocity to be so propelled by their own momentum as that, when the engine was cut loose and speeded on ahead and had passed the switch leading to the house track, the cars would follow on, and, the house track switch being then opened to receive them, the cars would run in upon the house track, pass and clear the crossing between the depot and the lumber shed, and take their stand on the house track south of and next to the cars already standing there. This was done, and there is evidence tending to show that the switching was thus executed in order to "save time";...