Warren v. Chicago, Burlington & Quincy Railway Co.

• Decision Date: 08 May 1905
• Citation: 87 S.W. 585,113 Mo.App. 498
• Parties: FRANK WARREN, Respondent, v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY CO., Appellant
• Court: Kansas Court of Appeals

87 S.W. 585

113 Mo.App. 498

FRANK WARREN, Respondent, v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY CO., Appellant

Court of Appeals of Missouri, Kansas City

May 8, 1905

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

Cause affirmed.

M. A Low, E. C. Hall and Frank P. Sebree for appellant.

The plaintiff assumed the risk of a collision of the handcar and the regular passenger train, and he was negligent in being upon and running the handcar down the grade and around the curve at a rapid speed, and there was no negligence on the part of the defendant. The demurrers to the evidence should have been sustained. Hammond v. Railway, 83 Mich 334; Railway v. Baugh, 149 U.S. 368; Minnier v Railway, 167 Mo. 99; Cothron v. Cudahy, 98 Mo.App. 343; Kleine v. Freunds, 91 Mo.App. 102; Harrington v. Railroad, 104 Mo.App. 663; York v Railway, 117 Mo. 405; Burling v. Railway, 85 Ill. 18; McGrath v. Railroad, 14 R. I. 357; Railway v. Modglin, 85 Ill. 481; Railway v. McKnight, 16 Ill.App. 596; Railway v. Leech, 41 Ohio St. 388; Railway v. Wachter, 60 Md. 395.

Pross T. Cross and W. S. Herndon for respondent.

(1) The point made by the appellant that plaintiff assumed the risk of a collision of the handcar with the regular passenger train, is, we take it, not well taken. (a) Such a defense is an affirmative one and in order to be taken advantage of, must be specially pleaded. The answer of defendant contains no such defense. Railway v. Orr, 84 Ind. 50; Mayse v. Railway, 63 Iowa 562; Nicholas v. Railway, 90 Iowa 85; Walker v. McNeil, 17 Wash. 582; Railway v. Tracy, 66 F. 931; Minnier v. Railway, 167 Mo. 99; Cothron v. Cudahy, 98 Mo.App. 343 cited by appellant. (b) Neither the carelessness of fellow-servant nor a vice principal was a risk which plaintiff assumed. R. S. 1899, sec. 2875; Thompson v. Chappell, 91 Mo. 297; Stubbs v. Railroad, 85 Mo.App. 192. (2) John Stanfield was foreman of this gang of men. The evidence shows that he placed the man "Bob" Reynolds, in charge of the handcar, upon which plaintiff was riding with orders to stop at curves and to look out for trains. He occupied the position of the foreman and had full charge and control of this car and the men who were on the car with him. He was at that time in the place of the foreman, and whether acting as foreman or as fellow servant, defendant is liable for his negligence. R. S. 1899, sec. 2873; Rice v. Railway, supra; Thompson v. Chappell, supra; Shuler v. Railway, 87 Mo.App. 618; Stubs v. Railway, 85 Mo.App. 192. (3) Counsel for the appellant assume, in their only point or assignment of error, and in their printed argument, that plaintiff was guilty of negligence himself and that there is no evidence of negligence on part of defendant. We take it that under the whole evidence this assumption is not correct and that the negligence of defendant's agents and servants on the handcar with plaintiff at the time of the injury, is the negligence of the defendant. Rice v. Railroad, supra; Eberly v. Railroad, supra.

OPINION

BROADDUS, P. J.

The plaintiff seeks to recover damages as a result of an injury caused by the alleged negligence of the defendant while he was in its employ. The answer is a general denial and that plaintiff's injuries, if any, were the result of his own negligence. The Chicago, Rock Island & Pacific Railway Company was also made a party defendant.

The facts are as follows: On the 11th day of November, 1902, the plaintiff was in the employ of the defendant, the Chicago, Burlington & Quincy Railway Company, as one of an extra gang of track and bridge repairers, under its foreman, John Stanfield. On that day, and for a week or two previous, this gang had been at work at a point on said defendant's track between its stations of Kearney and Robertson, in Clay county, Mo. The headquarters or boarding place of this gang was at Kearney, and they used two handcars in going to and returning from their work, going out in the morning and returning in the evening. On this particular evening the foreman stopped the men from work about 5:30 o'clock and starting back to Kearney on their handcars, the foreman and eleven men got on the larger car, which was in front, and the plaintiff and four others on the smaller car, which was behind. The car on which the foreman rode always preceded the other. The foreman ordered one of the men, Bob Randall, called by one witness "Reynolds," to take charge of the hind car, to stop at curves and to look out for trains. Randall rode in the brake pocket--that is, he occupied the position on the car where he had control of the brake and where it was his duty to look out for trains. Plaintiff was on the front end of the car, going in, in the middle with his back in the direction he was going. It had been the custom to stop at curves and listen for trains and the evidence shows that this had been done on previous occasions by the so-called "straw boss," Bob Randall. Besides the plaintiff, Joe Smith, Theo. Hays and Walter Rice and Randall were on the hind car. The two handcars with the men on them started for Kearney, after the orders were given to Randall, the car on which plaintiff was riding following the other at some distance. They proceeded on their way to Kearney until they approached a curve on one side of which was a bank and on the other "woods." The man in charge of the hind car instead of stopping the car at the approach of this curve, as had been the custom and according to his orders, permitted the car to run into the curve without making any attempt to stop the car or to order it stopped. The object of such precaution was to avoid the danger of collision with the Rock Island train which was due by its schedule time--all of which plaintiff knew. As they approached this curve, or ran into it, one of the men on the car with plaintiff, who was on the back end of the car facing the way it was going, discovered a train--which was a Rock Island train known as number fifteen--just ahead of them, gave the alarm and jumped off the handcar, as did all the others. The plaintiff being in the middle of the handcar, working the handlebar, in attempting to jump off and avoid the train failed to clear the track and fell in front of the handcar, which ran over his knee and ankle; in addition to these injuries he received some cuts and bruises about the head from his fall on the ground. Immediately after the engine struck the handcar, and when the train had been stopped, the handcar was lodged on the pilot of the engine. The men on the front car discovered the approaching train in time to get their car off the track--that is, they had gone far enough into the curve to see the train in time and get out of the way.

The plaintiff pleaded and put in evidence rules five and sixteen of time card numbered 67 of defendant, Chicago, Burlington & Quincy Railway Company, for the purpose of showing the duties of the Rock Island employees in charge of the colliding passenger train, and offered evidence showing negligence on its part in failing to give any warning of its approach; but as the trial court set aside the verdict as to it, that matter is not material in this defendant's appeal. There is evidence showing that the foreman, John Stanfield, had placed the man Randall in charge of the car on which plaintiff was riding; that he had given him orders to stop at all curves and look out for trains; that the car had usually stopped at this curve, under the orders of said Randall, to look out for trains; that on this occasion said Randall was on the car in charge of the same and that he failed to perform the duties required of him. The handcar as it approached the curve in question was going down grade at a rapid rate of speed.

The defendant, Chicago, Rock Island & Pacific Railway Company was running its trains over this track as a lessee of its co-defendant. The petition is drawn and the case was submitted on the theory that if the negligence of either defendant, its agents or servants caused the injury, then the defendant guilty of such negligence was liable; and if both defendants were negligent and the negligence of each...