Williams v. Wabash R. Co

• Decision Date: 01 April 1915
• Docket Number: No. 17001.,No. 17004.,17001.,17004.
• Citation: 175 S.W. 900
• Parties: WILLIAMS v. WABASH R. CO.
• Court: Missouri Supreme Court

175 S.W. 900

WILLIAMS v. WABASH R. CO.

No. 17001.

No. 17004.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Appeal from Circuit Court, Monroe County; Wm. T. Ragland, Judge.

Action by Thomas J. Williams against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Judgment reversed if a remittitur is not entered, and affirmed if it is.

J. L. Minnis, of St. Louis, and David H. Robertson, of Mexico, Mo., for appellant. M. J. Lilly and Jerry M. Jeffries, both of Moberly, for respondent.

GRAVES, J.

Action for personal injuries. Verdict and judgment for plaintiff in the sum of $20,000, from which defendant has appealed. There seems to be two short transcripts on file covering the same case. Why the two does not appear, unless it be that one is "shorter" than the other. Both bring up the same judgment. This accounts for the two numbers to the case.

Plaintiff was an engineer in the employ of the defendant at the time he was injured. The negligence upon which his action is grounded is thus stated in the petition upon which trial was had:

"Plaintiff says that on said 4th day of December, 1910, he was, and had been for a long time prior thereto, in the employ of defendant company as a locomotive engineer; that on said day and date he was by defendant put in charge of its locomotive engine No. 825, putting one of defendant's regular passenger trains, known as No. 3, Moberly, Mo., to Kansas City, Mo., over defendant's said railroad track between said places; that while plaintiff was so employed, running and operating said engine, pulling said train of cars, at a point of said track near Missouri City, which is west of Excelsior Springs Junction, another point of defendant's said track, one end of the forward brake beam to the rear trucks on tender of said engine and train came down and was dragged on the rail of defendant's said track, and it became and was necessary for the plaintiff in the performance of his duties as such engineer so in charge to stop said engine, tender, and train of cars and repair said brake beam; that after plaintiff had then and there stopped said train of cars, engine, and tender, it was necessary for the plaintiff to get under said tender to make said repairs, which after giving all necessary and required signals in such case, plaintiff with reasonable care and caution got under said tender to make said repairs. Plaintiff says that it was the duty of defendant, its officers, agents, employés, and servants, to use reasonable care and caution to protect plaintiff from injury while so engaged in repairing said brake beam; that while plaintiff was so engaged defendant, through its officers, agents, employés, and servants and through those of them who were in charge of another of defendant's passenger trains over defendant's said track from Excelsior Springs Junction, Mo., to Kansas City, Mo., designated as second No. 3, so carelessly and negligently ran, operated, managed, and controlled the same that the same ran into the train of cars, tender, and engine, under which tender he was working, as aforesaid, and collided therewith from the rear, while plaintiff was so working, as aforesaid, and injured plaintiff, as hereinafter stated, when it, the said defendant, its agents, servants, and employés knew, or by the exercise of ordinary care might have known, that plaintiff was so engaged at the time."

Answer was a general denial and plea of contributory negligence. Reply general denial.

Plaintiff, as engineer, was running a regular passenger train of the defendant from Moberly, Mo., to Kansas City, Mo. This train was known as No. 3. On the day in question, at a point just west of Missouri City on defendant's line of road, the plaintiff brought his train to a stop to repair a brake beam on the tender of his engine, which beam was dragging the ground and thereby threatening the derailment of the train. Missouri City is the first station west of Excelsior Springs Junction, another station on said road. When plaintiff's train passed Excelsior Springs Junction, another of defendant's trains, having for its engineer one C. O. Smith, was standing there, and in about 10 minutes followed up plaintiff's train. This second train was known as second No. 3. When plaintiff stopped his train he whistled for flags to protect his train, and the conductor on his train went back the distance of 885 feet east to flag second No. 3. He placed a torpedo, and had with him a red lantern. Plaintiff's train left Excelsior Springs Junction at 4:45 p. m., and on that day December 4, 1910, the sun set at 4:39. Plaintiff passed Missouri City at 4:53, and stopped about three-quarters of a mile to the west thereof. From Missouri City west is an upgrade on defendant's railway track. Counsel for plaintiff makes the following statement of additional facts, which statement is borne out by evidence in the record:

"The conductor of train No. 3 immediately went back to the east a distance, as stated by him, of five telegraph poles, estimated by the conductor to be from 800 to 1,000 feet, and showing by actual measurement to have been 885 feet. This brought the conductor, who was acting as flagman, to a point referred to in the testimony as `the west end of the coal chute switch.' From this point to the depot at Missouri City, a distance of 1,907 feet, the track was straight, and there was nothing to obstruct one's view of the track from said depot to the west end of said coal chute switch, where the conductor took his position as flagman. Forty or 50 feet east of where the conductor took his position to flag, he placed a torpedo on the track. Prom Missouri City west is a heavy pull uphill; the track is a heavy upgrade for three-fourths of a mile west of Missouri City. In order to make the necessary repairs to the dragging brake beam it was necessary for plaintiff to get down on his back between the rails under the tender of his engine, Which he proceeded to do after his train was protected by a flagman, as aforesaid. Something like 10 minutes after passenger train No. 3, in charge of plaintiff, as engineer, departed from Excelsior Springs Junction, passenger train second No. 3, in charge of one C. O. Smith as engineer, proceeded to follow it into Kansas City. Engineer Smith knew that he was closely following plaintiff's train; he knew that his train was being operated as second No. 3; he had seen train No. 3 at Excelsior Springs Junction, about a quarter of a mile east of Missouri City. According to his own testimony, he shut off the steam of his engine and reduced the speed of his train partly from the fact, as stated by him, that he was following No. 3. When he reached the depot at Missouri City he had an unobstructed view of the flagman of train No. 3 for a distance of 1,937 feet. Second No. 3 came in view of the flagman when it reached the depot at Missouri City. The conductor of No. 3 began to flag with a red lantern as soon as second No. 3 came into view at the depot at Missouri City by swinging the lantern across the track. This signal was a stop signal, which the flagman continued to give until after second No. 3 had passed over the torpedo 40 or 50 feet east of him and had exploded it, and until the engine of second No. 8 reached him, and in a last desperate attempt to attract Engineer Smith's attention to make him heed these stop signals, threw his lantern at the cab of the engine of train second No. 3 as it passed him. Yet, notwithstanding these stop signals, the engineer of second No. 3. after having shut off the steam of his engine a quarter of a mile east of the Missouri City depot, and after he had reached the depot and came within view of the flagman and the stop signals that were being given, and after he had passed the depot going west, gave his engine steam, and covered, from the time that he came within view of the flagman and the stop signals, not only the distance of 1,907 feet from the Missouri City depot to the point from which the stop signals were given with the lantern, but ran 885 feet beyond and crashed into the rear of train No. 3, beneath the tender of which plaintiff was making repairs necessary to prevent the derailment of his train, covering in all, after he might have had a clear view of the stop signal of No. 3's flagman, a distance of 2,792 feet, or 252 feet more than half a mile. The engineer of second No. 3 testified that he ran a little more than half a mile west of the Missouri City depot before the collision occurred, and that while so running he had the window of his cab open, his head out, and was looking ahead. From the Missouri City depot west a distance of 1,907 feet the view was unobstructed. To look, under the circumstances, was to see. During all this time the flagman of No. 3 was swinging the red light of his lantern across the track. Second No. 3, equipped as it was, could have been stopped within 400 feet. The engineer of that train, after the stop signal was displayed within his view, had 2,792 feet within which to stop. That this train could have been stopped within 400 feet is testified to by plaintiff, and it appears in the record, as an admission by counsel for defendant, the late Judge George Robertson, that plaintiff was qualified to pass on a question of this kind."

Further details, if necessary, will be noted in the course of the opinion in connection with the points made. This outlines the case from plaintiff's standpoint.

I. The first point made by the defendant is couched in this language:

"The petition charged a specific act of negligence, in this: That the engineer of second No. 3 knew, or by the exercise of ordinary care might have known, that the plaintiff was engaged in working under the tender, but negligently failed to stop his train and avoid the collision. Plaintiff was bound to prove this negligence, to recover."

We hardly believe that the defendant's point fairly states the plaintiff's petition. It must be...