Whitley v. Chicago, Burlington & Quincy Railway Company

• Decision Date: 07 November 1904
• Citation: 83 S.W. 68,109 Mo.App. 123
• Parties: R. C. WHITLEY, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

83 S.W. 68

109 Mo.App. 123

R. C. WHITLEY, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.

REVERSED.

Judgment reversed.

A. W Mullins for appellant.

(1) The verdict in this case is against the weight of evidence. The refusal of the court to set it aside, was error. Hemetreich v. Corlas, 24 Mo.App. 264; Spooner v Railway, 20 Mo.App. 403; Wright v. Railway, 20 Mo.App. 481; Brewing Co. v. Bodman, 12 Mo.App. 573; O'Donnell v. Railway, 7 Mo.App. 190; Taylor v. Fox, 16 Mo.App. 527; Walton v. Railway, 49 Mo.App. 620; Price v. Evans, 49 Mo.App. 396; Spohn v. Railway, 87 Mo. 74; Lyonberger v Spolman, 16 Mo.App. 392. (2) The defendant's instruction in the nature of a demurrer to plaintiff's evidence should have been given, and instruction 8 asked by defendant, that under all the evidence in the case plaintiff was not entitled to recover, should also have been given. Plaintiff voluntarily put himself in a place of danger. Defendant's train men had no knowledge whatever that the plaintiff intended to go in between the cars to work, or that he was in between them, when the accident happened. Plaintiff's own thoughtlessness, recklessness and rashness was the direct and proximate cause of his injury. He is not, therefore, entitled to recover. Varnell v. Railway, 113 Mo. 570; Richardson v. Mesker, 171 Mo. 666; Thompson v. Railway, 86 Mo.App. 141; Henry v. Railway, 76 Mo. 288; Hudson v. Railway, 101 Mo. 13; Holloran v. Iron & Foundry Co., 133 Mo. 470; Hogan v. Railway, 150 Mo. 36.

H. E. Maybee, A. A. Bailey and O. F. Libby for respondent.

(1) The respondent Whitley had a right to rely on brakeman Watson's statement that they were through switching and that he would thereby be protected, the conductor being absent from the train. Moore v. Railroad, 85 Mo. 588; 1 Addison Torts, p. 605, Wood Ed.; Greene v. Railroad, 31 Minn. 248. (2) Even a conductor who uncouples cars without notifying brakemen is guilty of negligence. Neilon v. Railroad, 85 Mo. 599. (3) The instructions for both the plaintiff and defendant fairly present the law of the case. Karl v. Railroad, 55 Mo. 476; Hill Bros. v. Bank, 73 S.W. 307; Chinn v. Railroad, 75 S.W. 375; Dougherty v. Railway, 97 Mo. 647; Owens v. Railway, 95 Mo. 169; Hanhiel v. Transit Co., not yet reported. (4) When there is evidence to support the verdict it will not be disturbed on appeal. Hill Bros. v. Bank, 73 S.W. 307; Chinn v. Railroad, 75 S.W. 375; Cook v. Railroad, 63 Mo. 397; Hyde v. Book & News Co., 32 Mo.App. 298.

OPINION

SMITH, P. J.

The petition amongst other things alleged that on September 26, 1902, while the plaintiff was in the employ of the defendant in the capacity of car inspector and repairer at Laclede station on its line in this State, a freight train consisting of a locomotive and a number of cars arrived at said station and then proceeded south to the long west side track south of said station where it stopped for the purpose of setting out cars; that after plaintiff had been informed by the brakeman in charge of such train engaged in conducting such work of setting out cars that the train was through setting out cars from his train and placing them on the side track where plaintiff had work to do, plaintiff believing and relying on such statement of the brakeman on such train that the work of the train crew was through on the track where he was engaged in repairing cars and that the locomotive and cars attached thereto would not thereafter be backed in on such long side track where he had work to do, after waiting until he (plaintiff) could see the defendant's locomotive and cars attached thereto had passed clear out from the long side track where he had work to do and was on the main track, plaintiff then proceeded to make necessary repairs upon a connecting link between the lock pin and the lifting bar on draw-head attached to one of the cars stored on the long side track aforesaid, and to make such necessary and needed repairs it became and was necessary for plaintiff to do such work between two cars; that while plaintiff was so engaged in repairing such car on the long side track aforesaid, and while plaintiff was repairing the connecting coupling between lock pin and the lifting bar on such car the defendant by its agents, servants and employees in charge of the locomotive and cars thereto attached, well knowing that plaintiff was at work between such cars stored on such long track aforesaid, left the main track where they were when plaintiff proceeded to his work, and after telling plaintiff they were through with their work on such track, carelessly, negligently and wantonly proceeded to back, or kick, such cars on the main track detached from the locomotive on main track in and through the switch and upon the long side track where they had previously informed plaintiff that they were through working and carelessly and negligently run such cars back from locomotive, detached, without notifying plaintiff and without sounding the steam whistle or ringing the bell upon the locomotive, and without giving any signal whatever or warning of any kind of the approach of such cars upon such side track, and carelessly, negligently and wantonly run such locomotive and cars, detached, from said locomotive backwards at a high rate of speed, without any brakeman, watchman or other person stationed on the top of such rear car to give signals of the approach of such locomotive and cars, and with great force and violence "kicked" the cars being pushed by such locomotive in and upon the side track where plaintiff was repairing defendant's car and against the car in front of the one plaintiff was repairing with such force and violence as to run the car that plaintiff was repairing against and upon plaintiff, and without fault or negligence on plaintiff's part, causing his left hand to be caught, mashed and the bones broken, his right hip sprained, bruised, lamed and permanently injured, his ribs broken, back injured, and made sick and sore, from which injuries received as aforesaid it became necessary to amputate the forefinger on plaintiff's left hand, the rest of his fingers on such hand otherwise made stiff and permanently made weak and lame and plaintiff's spine and ribs so injured that by reason of the wrongful and negligent acts of defendant plaintiff had been injured and damaged, etc.

The answer contained a general denial and the plea of contributory negligence. There was a trial resulting in judgment for plaintiff and defendant appealed.

At the conclusion of all the evidence the defendant interposed a demurrer which was denied, and this action of the court, it is now insisted, was an error which requires a reversal of the judgment. Referring to the evidence contained in the record before us, and from that it appears that the plaintiff at the time of the receipt of the injury complained of was a car inspector and repairer in the employ of defendant at Laclede station, the place of the injury, and that at that station defendant has two side tracks, one on either side of the main line. A freight train numbered five, in the afternoon of the day of the injury, arrived at said station where it made a short stop and then proceeded along the main track to the south end of the side tracks for the purpose of switching and disposing of the cars on it which were twelve in number.

The plaintiff testified that he was dressed in his working clothes and had in his hands his tools for performing the services required of him at the time of the arrival of the train at the station. When the train stopped he there inspected the east side of the cars and found several things that needed repairs, amongst them being a lock pin disconnected from the lever. "The chain was a lap-ring in place of what we used to call a lap-pin that is on a coal car. That was a part of the coupling apparatus by which the back cars were coupled together. It is what they call a janny-coupler. When they go together they go like this (indicating). It is to save the brakeman from going in between the cars. There is a sort of bar that runs out to the side of the car. The brakeman can raise that flange and raise the pin without going in between the cars. Yes, it is a part of my duty to do that repairing. The company instructed me to do everything that was possible for me to do in that line. There was other work to be done on those cars before they were set back on the main line and they switched these cars in. I rode down on the train and the caboose was cut off up at the upper end of the long track and I inspected the east side of the cars that were brought in on No. 5, and when they got over the crossing, I got on the train and rode down to the lower end of the yard, and the trainmen went to switching the cars to get them in place where they should be. The caboose was left at the upper end of the west long track. That was south of the Hannibal & St. Joe crossing. The balance of the train went on south about a quarter of a mile down to the lower end of the switching yard. I got on the train and rode down to the place where...