Youmans v. Wabash R. Co.

• Decision Date: 07 March 1910
• Citation: 143 Mo. App. 393,127 S.W. 595
• Parties: YOUMANS v. WABASH R. CO.
• Court: Missouri Court of Appeals

127 S.W. 595

143 Mo. App. 393

YOUMANS v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

March 7, 1910.

Rehearing Denied May 2, 1910.

1. CARRIERS (§ 244) — PASSENGERS — FREIGHT TRAINS — TRESPASSERS.

Where a former employé of a railroad asked permission to ride on a freight train knowing that it was against the rules, and was refused and succeeded by collusion with the conductor in getting permission to ride on the freight train, he was a trespasser, and not a passenger.

2. RAILROADS (§ 276) — TRESPASSERS ON FREIGHT TRAIN — CARE REQUIRED.

A trespasser on a freight train is entitled to protection only under the humanitarian rule.

3. RAILROADS (§ 276) — TRESPASSERS — IMMINENT PERIL.

Knowledge of the operatives of a freight train that, by stopping at a switch and leaving the train on the main track, a collision might occur by a train which they knew was following, is not a knowledge of imminent danger so as to entitle a trespasser on a train to warning of that fact, the absence of which would render the carrier liable for his death, which occurred in a collision, where the collision would not have occurred except for the negligent act of the brakeman in not flagging the train a requisite distance back and the act of the engineer of the other train in not obeying a cautionary order to look out for the first train.

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

Action by Mary R. Youmans against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. L. Minnis, G. P. Smith, and E. W. Hinton, for appellant. E. Rosenberger & Son and Barclay, Fauntleroy & Cullen, for respondent.

BROADDUS, P. J.

The plaintiff sued to recover the penalty provided by the statute for the death of her son, Howard T. Youmans, a minor, which occured in a collision between two of defendant's freight trains, on the 15th day of April, 1907, at High Hill Station, Mo. The son lacked about one month of being 21 years of age at his death. He was a telegraph operator, but was out of employment at the time. On the day in question he and a companion reached Moberly, and applied to defendant's chief dispatcher for a pass to St. Louis, which he refused them, whereupon they went to the freight-yard office of defendant and introduced themselves to one Edmonson, who was on duty there, and persuaded him to solicit some freight conductor to give them a free ride to St. Louis. Edmonson saw conductor Rodgers, and induced him to let deceased and his companion ride on the first section of east-bound freight train No. 92, sent out in two sections, which was a through train, and was not permitted to carry passengers, unless they accompanied live stock on the train, or held a special permit from the superintendent of the company, all of which was known to the deceased. The deceased and his companion got into the caboose of the car at Moberly without paying any fare. The first section of 92 had orders to take coal and water at High Hill Station, and to meet a west-bound freight train at that place, at 10:50 p. m. When it reached the west end of the coal chute switch, at about 1,500 feet west of the station building, the engine was detached and carried down to the coal chutes situated on the south side of the train, leaving the train standing on the main track with the east end near the switch target, which left the rear end of the caboose about a half a mile west of the station. This train reached the point named at 10:50. p. m., consequently it had about 12 minutes to take coal and water before the westbound freight was due. It was shown that this was the usual and proper method on such occasions. When this train stopped, Rodgers, the conductor, went to the station for orders, leaving the brakeman, Griffith, in the caboose.

Rule 99 of defendant was introduced in evidence, which reads as follows: "When a train stops or is delayed under circumstances in which it may be overtaken by another train, the flagman (rear brakeman) must go back immediately with stop signals a sufficient distance to insure full protection. When recalled, he may return to his train, first placing two torpedoes on the rail, when the conditions require it." There was evidence, however, that employés of the company did not practice a strict compliance with the rule for ordinary and regular stops at stations when the weather was clear; that on such occasions it was not customary to send back a flagman, but to use instead what was called a short flag, that is to have the flagman signal at or near the rear end of the train in case another train came up behind. It was shown that Griffith, the brakeman, knew that a second section of 92 was following, but that he did not anticipate any danger of a rear-end collision, because he knew that if the second section was let into the same block before the first section cleared it, it would receive a caution card to proceed with the train under control, and to be on the lookout for the first section, and because the second section was running on the same order as the first, and would have to stop at the same place. Further facts are that when the first section stopped a stockman in the caboose requested Griffith to fix up the fire, and he did so, which took about 15 minutes of time; that Griffith then looked out and saw the headlight of the second section some distance back, estimated to be about two or three miles; that he then took his lantern and gave signals from the rear platform of the caboose,...