Williamson v. Wabash R. Co.

• Decision Date: 15 November 1909
• Parties: WILLIAMSON v. WABASH R. CO.
• Court: Missouri Court of Appeals

122 S.W. 1113

139 Mo. App. 481

WILLIAMSON v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

November 15, 1909.

Rehearing Denied December 6, 1909.

1. EVIDENCE (§ 586) — POSITIVE AND NEGATIVE TESTIMONY — RELATIVE VALUE.

Probative force is accorded to negative testimony, where the opportunity of the witnesses to receive knowledge of the fact is approximately equal to that of witnesses who give positive testimony concerning it, but where, because of an impaired sense or of an admitted lack of attention, the opportunity of the witness who did not see or hear is not equal to that of a witness who did, the testimony of the former is devoid of evidentiary strength.

2. MASTER AND SERVANT (§ 236) — INJURY OF SECTION HAND — NEGLIGENCE.

Where plaintiff, a section hand, was upon the track trying to remove a hand car knowing that a regular train was approaching which would assert a right of way over him and his hand car, and there was nothing to keep him on the track but his own heedlessness or preoccupation, and he had not the slightest excuse for remaining there until the train knocked him off, he was negligent as a matter of law.

3. MASTER AND SERVANT (§ 248) — INJURY TO SECTION HAND — KNOWLEDGE OF PERIL — HUMANITARIAN DOCTRINE.

When an engineer sees a section hand at work on the track, there is nothing to suggest to the engineer that he is oblivious to his danger, and will not step off in time to avoid being struck, but, where there is that in the appearance of the section hand which indicates the existence of real peril, the engineer should exert himself to avoid injuring the man, and in such a case the humanitarian doctrine is applicable.

4. MASTER AND SERVANT (§ 289) — INJURY TO SECTION HAND — KNOWLEDGE OF PERIL — HUMANITARIAN DOCTRINE.

Defendant's engineer while 600 feet away discovered that plaintiff, a section man, had his feet against one of the rails, and his body extended almost horizontally across the track, endeavoring to lift a hand car from the track with his shoulder. Plaintiff's position was extremely awkward, and it would require some time and effort to extract himself. A collision with the hand car could not be avoided, but there was ample time to whistle the danger signal, and, had plaintiff heeded it, he could have escaped. Held that, notwithstanding plaintiff's negligence, he was entitled to go to the jury on the issue of last clear chance negligence.

5. TRIAL (§ 191) — INSTRUCTIONS.

Where the court in charging the jury assumed that plaintiff, a section hand, injured from being struck by a train, had no knowledge of the near approach of the train and of his peril, these being controverted facts and both material, the instruction was erroneous, it being a question for the jury whether he was oblivious to his peril, and, if he knew of his peril, the jury might find that he wantonly exposed himself, thereby losing the protection of the humanitarian doctrine.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by William Williamson against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. L. Minnis and Robertson & Robertson, for appellant. M. J. Lilly, for respondent.

JOHNSON, J.

This suit is for damages for personal injuries alleged to have been caused by the negligence of defendant. Verdict and judgment were for plaintiff in the sum of $3,500, and the cause is here on the appeal of defendant.

The injury occurred about 5 o'clock p. m. April 13, 1908, at a point on defendant's railroad about 1¾ miles south of Cairo. Plaintiff was a section hand in the service of defendant on the section between Cairo and Moberly. The gang had been working about 1,000 feet north of the place of the injury. A south-bound regular freight train, some time overdue, was observed by the foreman to arrive at Cairo, whereupon he ordered some of the men to go for the hand car which was on a dump some distance north. When the men returned with the hand car, the foreman ordered plaintiff and another hand to load the tools on the car, and take it south to another dump. According to the testimony of plaintiff, the foreman said: "You take this hand car down there, and put the tools on it, and set it off the track, but put all the tools on it first and set it off. No. 70 (the freight train) is up there. I think you have plenty of time." In obedience to this order, plaintiff and his fellow workman, after the car was loaded, ran it down to the place indicated, and proceeded to remove it to the dump which was on the west side of the track. They lifted and pushed the forward end of the car around to the dump, and then plaintiff went around to the rear end to push the car westward until it would clear the track. To do this he was compelled to take a position between the rails. In pushing the car westward the rear wheels became stuck or obstructed in some way, retarding the clearing of the track. Plaintiff testified: "I was trying to get the car off the track, and I had my head down kinda, and was trying to lift the car up, and it got caught some way. I don't know how. I had my head down looking under the car trying to raise it up. I was trying to raise the car up to get it off the track, * * * and the first thing I knowed I didn't know nothing." At this time the locomotive collided with the hand car, and plaintiff was struck and severely injured. In their argument on the demurrer to the evidence counsel for defendant earnestly contend that plaintiff was guilty of negligence in law which directly caused or at least contributed to his injury; and, further, they argue that the facts and circumstances in their aspect most favorable to plaintiff disclose no cause of action under the "humanitarian doctrine."

Facts and circumstances in evidence which are pertinent to the questions argued thus may be stated: Plaintiff says, in substance, that he did not see the train at any time, did not know it was so near at hand when he was striving to push the hand car off the track, and did not hear any warning of its approach. He does admit the foreman told him the train was coming, and on cross-examination testified: "Q. You were working as fast as you could? A. Supposed to be. Q What were you taking that car off for? A For No. 70. Q. No. 70 that was coming? A Yes, sir." The dump to which plaintiff was trying to move the hand car was quite near the whistling post for a road crossing some distance south. All the witnesses introduced by plaintiff, except plaintiff himself and one other, state the whistle sounded the road crossing signal when the locomotive was about 600 feet north of the dump. Plaintiff and this witness say they did not hear the whistle, but plaintiff attempts to exonerate himself from the imputation of neglecting his own safety by the claim that he had become engrossed in his work, and the other witness admitted on cross-examination that he is "pretty hard of hearing," and "was absorbed in his work." The country through which the train was running is an open prairie, and the train was going up a slight grade in approaching the hand car. At the point where the engine whistled for the crossing there is a slight curve in the track. The engineer introduced as a witness testified: "As I approached the curve, I could see right straight across, and could see the whistling board, and could see the hand car setting on the dump and the whistling board in the middle, setting in...