Walker v. Missouri Pac. R. Co.

• Decision Date: 26 June 1923
• Docket Number: No. 3315.,3315.
• Citation: Walker v. Missouri Pac. R. Co., 253 S.W. 804 (Mo. App. 1923)
• Parties: WALKER v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

253 S.W. 804

WALKER v. MISSOURI PAC. R. CO.

No. 3315.

Springfield Court of Appeals. Missouri.

June 26, 1923.

Rehearing Denied July 16, 1923.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Jane Walker, administratrix of the estate of Wilson Walker, deceased, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition.

James F. Green, of St. Louis, and. J. C. Sheppard, of Poplar Bluff, for appellant.

Welker & Mulloy, of Poplar Bluff, for respondent.

COX, P. J.

Action for damages for death of Wilson Walker, a minor. Verdict and judgment for plaintiff, and defendant appealed.

This is the second appeal in this case. On the former appeal, the judgment was reversed and the cause remanded for new trial. The report of the first appeal is found in 210 Mo. App. 592, 243 S. W. 261, to which we refer for a full statement of facts and adopt the same here. We may, however, rehearse briefly as follows: The defendant was building a grade on which to locate switch tracks some 10 miles east of Poplar Bluff. A work train, consisting of flat cars with a caboose at one end, was used to haul dirt from a point near Poplar Bluff to the switch. The defendant was engaged in interstate commerce, and the work being prosecuted by it was in the improvement of their track. Many of the workmen lived at Poplar Bluff, and were taken by defendant from Poplar Bluff, to the switch where they worked, each morning on a passenger train, and many of them would return in the evening on the work train. One of these workmen was son Walker, the deceased. On the return these workmen either rode in the caboose or on the fiat cars, as suited their convenience, and passed at will from the flat cars into the caboose and from the caboose onto the flat cars while the train was in motion. The caboose had doors in the sides and at the ends, but had no platform at the ends, so that a person passing from the flat cars to the caboose, or vice versa, must step across the open space between the cars, which was from 2 to 3 feet wide. There was an iron bar across the door in each end of the caboose, about 5 feet from the floor. On August 10, 1921, Wilson Walker and others were returning to Poplar Bluff on the work train and riding on the fiat cars. Walker attempted to pass from the flat car into the caboose, and in doing so struck his head against the iron bar across the door, and fell between the cars, and was run over and killed. Other facts will be noticed later.

After the cause was remanded for new trial by this court on the former appeal, the petition was amended to meet the objections made to it, and at the trial the instructions to the jury were made to conform to the former opinion of this court. As before, the alleged acts of negligence on which the case went to the jury were the maintenance of the iron rod across the door and the failure to maintain a light at the end of the caboose, so that a person who did not know of the Presence of the rod across the door could see it. The character of the evidence was the same as at the former trial, with some additions on each side, and the errors which caused a reversal of the former judgment were avoided when the case was retried. There are no new questions on this appeal that were not presented in the former appeal.

Counsel for appellant strenuously insist that there is no evidence that it was negligence on the part of defendant to maintain a rod across the door in the end of tire caboose, but contend that all the evidence shows that the rod was kept there as a matter of protection to those riding in the caboose, to prevent them from walking out at the door and falling under the cars, and to prevent their being thrown out in case of a sudden jerk of the caboose. Mere was evidence by defendant, which may be conceded to be true, that this caboose was similar to others in general use in connection. with freight trains, and that such cabooses were sometimes used or work trains. When used on freight trains, the rod was there for protection to both the trainmen and any person who might be riding in the caboose as above indicated. There is no evidence that the caboose when used in connection with a freight train, was used in a way to permit persons other than those employed in connection with the train, that might be riding in the caboose, to pass in and out at the door at the end, across which the iron bar was maintained. Had it been the intention to so use the end door, the caboose would have had a platform at the end. This caboose had a door " in each side for the use of persons getting on and off the caboose, and it is but fair to assume that the end doors were only intended to be used by the employees, whose duties in connection with the train may have required them to pass to and from the caboose while the train was in motion. This would certainly he true of brakemen, who might be required to leave the caboose and climb to the top of box cars while the train was in motion. When, how" ever, the caboose was detached from a freight train and attached to a work train, as was the fact in this case, and the workmen permitted to ride on the flat cars, and to pass at will from them to the caboose while the train was in motion, a different situation arises. The door in the end of the caboose then became a regular passageway for the workmen, who had no connection with the operation of the train, and the defendant owed to these workmen the duty to use ordinary care to see that the doorway was reasonably safe for the purpose for which it was being used by the workmen. We are not prepared to say as a matter of law that it was not negligence to maintain the rod across the door while it was being used as it was used at the time Walker was killed, and are of the opinion that this question was properly one for the jury.

It is next insisted that defendant owed no duty to Walker to maintain a light at the end of the caboose so he could see the rod across the door. Plaintiff's evidence tended to show that at the time of the accident it was getting dark, and that a person could not readily see the rod across the door. One witness testified that the deceased had not ridden on the flat cars at any time previous to the evening on which he was killed if that were true, the jury could have found that he was not aware of the presence of the rod across the door, end if the doorway had been lighted he wonicl have seen the rod across it, and would not have been killed. The instructions required the jury to find that Walker did not know of the presence of the bar across the door, and could not see it, before convicting defendant of...