Witham v. Delano

• Decision Date: 23 November 1914
• Citation: 171 S.W. 990,184 Mo.App. 677
• Parties: DANIEL WITHAM, Appellant, v. FREDERICK A. DELANO, WILLIAM K. BIXBY, and EDWARD B. PRYOR, Receivers of the WABASH RAILROAD COMPANY, Respondents
• Court: Kansas Court of Appeals

171 S.W. 990

184 Mo.App. 677

DANIEL WITHAM, Appellant, v. FREDERICK A. DELANO, WILLIAM K. BIXBY, and EDWARD B. PRYOR, Receivers of the WABASH RAILROAD COMPANY, Respondents

Court of Appeals of Missouri, Kansas City

November 23, 1914

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

Affirmed.

Aubrey R. Hammett for appellant.

(1) Plaintiff was not a section hand, or track workman, of the defendant, but an employee of an independent contractor who was invited to live in the bunk cars and use the track as a footpath at the place of the injury. Had a right under the contract between the defendants receivers and Grammitt & Johnson to live in the bunk cars and use the track as a footpath. And the defendants owed him the duty of exercising ordinary care towards him. Chandler v. Railroad, 251 Mo. 604; Butler v. Railroad, 155 Mo.App. 296; Weaver v. Railroad, 170 Mo.App. 289; Nelson v Railroad, 132 Mo.App. 694. (2) Defendant owed this plaintiff that degree of care and watchfulness which an ordinarily prudent person would exercise under similar circumstances to prevent injury. Bennett v Railroad, 242 Mo. 125; Railroad v. Drumright, 166 S.W 938.

J. L. Minnis, J. A. Collet, D. G. Phillips and D. H. Robertson for respondents.

(1) The plaintiff was a licensee by invitation and was entitled to the exercise of the same care for his safety as an employee of the defendant engaged in the same kind of work. Weaver v. Railroad, 170 Mo.App. 289; Nelson v. Railroad, 132 Mo.App. 687; White on Personal Injuries, sec. 864; Collins v. Railroad, 23 J. & S. (N. Y.) 31. (2) The plaintiff being entitled to the exercise of the same care for his safety as an employee of defendant engaged in the same work, he falls within the status of a track workman or section hand. Therefore, no lookout was required to be kept for him, and defendant could only be liable in case he was actually seen in a position of peril in time to avoid his injury by using ordinary care. Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Degonia v. Railroad, 224 Mo. 564; Sissel v. Railroad, 214 Mo. 515; Williamson v. Railroad, 139 Mo.App. 481. (3) The plaintiff cannot be permitted to deny the truth of his petition and evidence. Behen v. Transit Co., 186 Mo. 440; Habel v. Railroad, 140 Mo. 159; Harrison's Admr. v. Hastings et al., 28 Mo. 346. (4) Even if plaintiff be permitted to deny the truth of the petition and evidence, and stand upon an inference converse to his petition, theory of fact and proof, then no amendment should have been permitted, for the reason that this, taking plaintiff's view, constituted a total failure of proof. Hensler v. Stix, 113 Mo.App. 162; Litton v. Railroad, 111 Mo.App. 140. (5) The petition having charged the one alternative fact, proof of which would not make liability and the other alternative fact, proof of which would make liability and the evidence not pointing to one alternative more than the other, there could be no recovery. Warner v. Railroad, 178 Mo. 134; Smart v. Kansas City, 91 Mo.App. 586; Epperson v. Telegraph Co., 155 Mo. 346; Smith v. Bank, 99 Mass. 605; Searles v. Railroad, 101 N.Y. 661; Pierce v. Kyle, 26 C. C. A. 201. (6) Even if the engineer did actually see the plaintiff, nevertheless, under no state of pleading, could the plaintiff recover. Schupp v. Railroad, 166 Mo.App. 597; Veatch v. Railroad, 145 Mo.App. 232.

OPINION

JOHNSON, J.

This is an action for personal injuries alleged to have been caused by negligence of defendant in the operation of one of its passenger trains. A directed verdict was returned for defendant and plaintiff appealed. At the time of his injury which occurred about six o'clock p. m. September 1, 1913, near the station of Renick, plaintiff, a common laborer, was in the service of independent contractors who were laying a new main track for defendant parallel to, and eight feet south of, the old main track. The work had progressed to the stage where the new track had been laid and for a week or more had been occupied by ten or twelve camp cars in which the laborers, thirty-five or forty in number, boarded and lodged. The presence and uses of these cars were known to defendant and to the engineer and fireman of the locomotive that injured plaintiff. The old and new tracks were on the same level and were on a high fill. Ballast had been dumped between them but had not been leveled or made smooth. A sinuous path had been worn over the uneven surface of this ballast by the laborers who were compelled to use that space as a means of ingress and egress to and from the cars of the camp train. The camp cars were coupled together and each was about thirty feet long. When a passenger train went by the clear space between it and the camp train was three feet and two inches. A laborer could stand in safety in this space and the openings between the camp cars at intervals of thirty feet afforded him places of refuge if he desired to give the passing train a wider clearance. Plaintiff had quit work for the day, returned to the camp and was walking westward along the path carrying a bucket which he intended to fill with water at the tank car. When he had proceeded three car lengths a westbound passenger train, running forty or forty-five miles per hour, struck his right elbow and injured him. The engineer had whistled for the station and afterward for a public crossing but plaintiff had not noticed these signals and was not aware that the train was approaching. The engineer and fireman state they were looking ahead as they neared the camp but neither observed plaintiff, and no warning signal was given. They did not know the engine struck him until their return trip thirty-six hours afterward. It was broad daylight, the track was straight and level, plaintiff was in possession of unimpaired senses of sight and hearing, and there were no obstacles to prevent him seeing or hearing the train had he looked or listened. His negligence must be conceded and the question at issue is whether or not his evidence discloses a cause which should have been submitted to the jury under the rules of the humanitarian doctrine.

Plaintiff's contract with his employers who, as stated, were independent contractors, required him to board and lodge at the camp cars which were maintained on the new track with the knowledge and consent of defendant. In using the path which afforded the only means of ingress and egress to and from the camp he was in the exercise of a lawful right and in no sense was a trespasser on the property of defendant. He was what is termed in some of the cases a licensee by invitation and was entitled to the same care for his safety the law would have exacted of the operators of defendant's trains towards him if he had been employed by defendant as a track laborer, instead of being employed by an independent contractor. [Weaver v. Railroad, 170 Mo.App. 284, et seq.; Nelson v. Railroad, 132 Mo.App. 687; White on Personal Injuries, sec. 864.]

The status of plaintiff was that of a track workman or section hand and the general rule is that as to such laborers who are required to keep out of the way of trains, the engineer of a passing locomotive is entitled to indulge the presumption of a clear track and is not required to be on the lookout for them. [Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Degonia v. Railroad, 224 Mo. 564; Sissel v. Railroad, 214 Mo. 515; Williamson v. Railroad, 139 Mo.App. 481.]

The necessity for order and system in the operation of a railroad is so great and of such vital importance that the courts have always recognized and enforced reasonable rules and regulations prescribed...