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place could be used by a prospective passenger, and then to go out over the tracks of defendants upon a freight train.

to such caboose. The only passageway, afford2. CARRIERS 282--NEGLIGENCE-EVIDENCE. ed by respondents, to reach said yard office, is

The mere fact that, when a prospective pas- a cinder path, bounded on the south by a high senger on a freight train trespassed on a part board fence and on the north by the south rail of the right of way not intended for his use, he of the main passenger track over which respondwas not ejected from the right of way, did not ents' passenger trains are run. Said cinder path make him an invitee to go into the same place is in fact a south boundary of respondents' a second time, especially where the dangerous switchyards. The switchyards, where the yard condition was obvious and open to his observa- office is located, contain a large number of tion.

tracks, a myriad of switch and signal lights, Woodson, J., dissenting.

and switch engines. In these switchyards all

of the trains going in four directions out of Appeal from Circuit Court, Jackson Coun- Moberly are made up. Freight and passenger ty; Nat M. Shelton, Judge.

engines and cars are continually passing to and

fro over said tracks in said switchyards, and at Action by Edward H. Hamilton, as admin- all times bells and whistles are sounding, all istrator of J. N. Hamilton, deceased, against of which make a condition extremely confusing Edward B. Pryor and another, as receivers to one not accustomed to frequenting said of the Wabash Railroad Company. Judgment board fence mentioned above and the south rail

switch yards. The distance between said high on verdict, after an instruction in the nature of the passenger track is approximately 10 feet of a demurrer to the evidence, and plaintiff until one reaches the east end of the yard office, appeals. Affirmed.

at which point the distance between the south

rail and the northeast corner of the yard office This is a suit for $10,000, brought in the is 6 feet and 2 inches. At a point 4 feet from Chariton circuit court by the plaintiff, as the northeast corner of the yard office a winadministrator of the estate of J. N. Hamil-dow is constructed in said yard office, which

extends a distance of 8 inches north from the ton, deceased, against the receivers of the side of the yard office, leaving a clear space at Wabash Railroad Company on account of the that point of 5 feet 6 inches between said windeath of the intestate, alleged to have been dow and the south rail of the main passenger caused by negligence in the maintenance and said main tracks extend on either side of said

track. Parts of passenger engines passing over operation of the railroad. The accident oc- rail for a distance of proximately 2 feet, so curred on October 20, 1914. The deceased that, when a passenger engine is passing said was, at the time of his death, unmarried, yard office at a point opposite the window aforeand had no children, either natural

said, the clear space is approximately 3 feet 6 or

inches. The yard office contains two doors, one adopted. The negligence charged in the pe.

on the west end and one on the east end. The tition and relied on in evidence consists in shippers of live stock who frequented said office the maintenance of the railway tracks, for information use either door they choose. On buildings, and office in the manner described, Hamilton, entered said 'switchyards at a point

the night in question, the deceased, J. N. and inviting their use in the transaction of about 300 yards east of said yard office through business with it. The answer is a general a turnstile, and was proceeding west along said denial and a plea of contributory negligence, cinder path to the west door of the yard office

for the purpose of procuring information as to which is denied by the reply.

his train unt he reached a point on the north The statement of facts contained in appel- side of the yard office, as aforesaid. At that lant's brief is as follows:

point respondents' east-bound train No. 28 pass"On the 20th day of October, 1914, J. N. led and the engine thereon struck the said J. N. Hamilton, deceased, delivered to the respondents, Hamilton and instantly killed him.” at their station at Salisbury, Mo., for shipment Certain exhibits, consisting of a map and to the National Stockyards, Illinois, one of cattle, which car the respondents accepted photographs, were in evidence, which will be and agreed to deliver at its point of destina- considered in explanation of the statement, tion. The custom of respondents, where ship- as well as testimony which may be helpful ments of stock were received at points west of in understanding it. At the close of plainMoberly, was to run the car into the switch- tiff's evidence the respondent asked and the yards at Moberly and at that point remake the train for the balance of the journey. Deceased, court gave an instruction in the nature of a Hamilton, accompanied the shipment of stock demurrer to the evidence, upon which a verfrom Salisbury to Moberly. In this particular dict was rendered and the judgment entered, case the train reached Moberly about 6 p. m. on the 28th day of October, 1914, and the de- from which this appeal is taken. ceased, J. N. Hamilton, was advised that the

Gilbert Lamb, of Salisbury, and Roy W. train would depart for the point of destination Rucker, of Keytesville, for appellant. J. L. about 10:55 p. m. of that date, which was its schedule time. It is not the custom of the com- Minnis and N. S. Brown, both of St. Louis, pany to run their freight cars, on which ship- and J. A. Collet, of Salisbury, for respondments of stock are loaded, to the main passen- ents. ger depot in the city of Moberly; but they are stopped at a point about a quarter of a mile west of said main passenger depot. The con- BROWN, C. (after stating the facts as signors of the stock accompanying the shipment above). The sole question presented by this are put off at said point west of said main record is whether the plaintiff's evidence passenger depot, and when the shipper boards the train for the latter part of the journey it made a cause that should, under the pleadis necessary and was the custom for him to re- ings, have been submitted to the jury. This turn to what is known as the yard office, in question presented itself in two aspects, the the switchyards, to obtain information from the person in charge as to the exact location of the first of which is whether it tends to prove caboose on the train which carries his cattle, that the respondents were negligent in the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

construction and maintenance of its yard. / room fitted up with benches for the accommoThe other is whether, if the respondents were dation of such persons as might have business negligent in that respect, the appellant was in the yard, and was also connected, through guilty of negligence contributing to the in- wickets, with the working force that occupied jury which caused his death. While the ap- the room on the west side of the building. pellant stood in the relation of a prospective This work room was forbidden to the pub .:c passenger to be carried from Moberly to St. by a sign over the door. Its accommodations Louis on one of the respondents' trains, the to outsiders consisted of one chair. Thus relation was modified by the fact that he was the public was admitted to the yard office a shipper and caretaker of live stock, to be through a gate and over a cinder path 10 carried only in that capacity, upon a train feet wide, leading to the lunchroom, and enddevoted to that purpose and in a caboose ing there in a large open space, which it furnished for his comfort and convenience in bounded on the west, and upon which its the pursuit of the object of his journey. Mo- only public door opened. To get to the priberly was the division point on the Wabash vate door, to which the deceased is said to Railway between Kansas City and St. Louis. have been going, he must have ignored all It was also a junction point. Its railway these plain invitations to pass through the yards were extensive. Many freight trains narrow way, the maintenance of which is were made up in them. The east-bound track the wrong charged as the foundation of this of the railroad was the south track in the suit. yard. The west-bound main track came next, [1] Was the railway company negligent in and still further north were many tracks up- the construction of this plant? If it was not, on which freight trains, including stock then the respondents are not negligent in trains, were made up, and from which they maintaining it, for there is nothing in the tesstarted. South of the main east-bound track timony to indicate any change in the condiwere the yardmaster's office and general tions. It had provided an entrance to its yard office and a lunch room, and some 200 yard at this point perfectly safe, convenient, feet east of these was the turnstile by which and ample for all purposes connected with his people entered the yard. In making up stock | business. A cinder path 10 feet wide had trains for St. Louis the caboose would stand been established outside its track system leadapproximately opposite the yard office, vary. ing to a perfectly clear plot of ground, ample ing somewhat with the length of the train, in extent and safe and convenient in characso that one leaving that office to take the ca- ter, leading into the offices provided for the boose would cross the main and other inter- transaction of his business, as well as into a vening tracks.

room where employés and visitors alike might The deceased had come to Moberly on the satisfy their hunger. All this seems to have railroad that afternoon with a carload of been perfectly done, and no way is suggested stock destined for St. Louis, which he intend-how, up to this point, it could be improved. ed to accompany. He was 23 years old, West of this, however, an observation window bright, strong, and active, engaged in farming had been placed in front of the office, facing and raising and handling stock, of good hab- the track, and extending 8 inches beyond the its, and had accompanied his stock to St. line of the front in such a manner as to enLouis through these yards on former occa- able the occupant to look up and down the sions. His uncle was with him in Moberly, track. The entire structure is alleged to have where they attended a celebration held by the been negligently placed, because this window Coon Club, which seems to have been a social approached the track to within a distance of club with convivial tastes, and an hour or so 5 feet 6 inches, so that, when a passenger before it was time for his train to leave his train went by, its projections extended to a uncle took him to the railway yard in his point only 3 feet 6 inches from the window. automobile. He dismounted and entered the The alleged negligence consists of this prox. yard through the turnstile in a high board imity, although there is no evidence tending fence, which inclosed it on the south, and to show that it did not afford an ample space stood on a cinder path, 10 feet wide, between of perfect safety to a careful man, with the fence and the east-bound track. He turn- the whole situation before him, attempting ed west, passing between the track and the to use, with ordinary care, this space for fence for a distance of something less than passage. There is nothing in the evidence in200 feet, where the fence turned diagonally dicating any attempt on his part to do so. away from the railroad track and attached The evidence leads us to the question why he itself to the northeast corner of the lunch- did not occupy this space, instead of the room, which was the first or most easterly space used by the engine in passing, and of the little group of buildings constituting drops us there. Had the space been greater, the headquarters of the yard force. The with the same result, this question would next of these buildings was the yard office, have remained. He was not only acquainted where the employés handled the yard work with the situation, but had all its physical The fence extended from the west line of the features before him at the time the projeclunchroom to the southeast corner of this tion of the window on one side and the track building, where there was a door entering a) itself on the other. His final destination was

across both these main tracks, and not along , engineer in the defendant's service, in charge them, for his caboose sat on one of the many of an engine hauling a train on its road. tracks to the north of them. Had he started While on the trip the hose between the tank to cross after having ascertained its position, and the boiler began to leak, making it neceshis duty of self-protection would have been sary for him to swing outside the tank to to ascertain and realize where the tracks tighten a nut. While doing this he was were, and to be watchful both east and west dragged off by the end of a fence, which exto ascertain the approach of all trains on all tended to within 6 or 8 inches of the bottracks, and his performance of this duty i tom of the passing tender and sixteen or would have been the measure of his safety. eighteen inches at the top. The opinion of We fail to see why it was not just as foolish Judge Black in that case placed the right to to put himself in the way of the train on the recover upon the ground that under the evieast-bound track while walking beside it, as dence it was the duty of the plaintiff to run while crossing it. The railroad company had his train upon that track, and to stop the provided a safe, comfortable, and obvious leak, which made it proper for him to take place for him to ascertain the position of his the position outside. Neither of these elecaboose, of which he did not avail himself. ments of necessity or propriety is in this In doing this, and keeping it in a safe condi- case. In Charlton v. Railway, 200 Mo. 413, tion for such use, it performed its full duty, 98 S. W. 529, a brakeman, who, in the pereven though there was another place, not formance of his duty, was climbing the ladnearly so easy of approach and obviously not der on the side of a car in a train being operintended for that purpose, at which it was ated by a crew of which he was a member, possible for him to get the same information.

was struck by a water crane too close to [2] The appellant does not seem to dispute the track to permit the performance of the this, but does insist, with vigor and inge- duty in safety, and was fatally injured. The nuity, that by not having put him out, or

same questions were involved as in the Murprotested in any form, when he had previ- phy Case, on the authority of which a judg. ously called at the west door for the same ment for the defendant was reversed. The information, which he asks us to presume employé had no choice of a place in which he was seeking on this occasion, it had in

to run the train. vited him to again pursue the same danger

In Crawford v. Stockyards Co., 215 Mo. ous course, and must therefore take meas- 394, 114 S. W. 1057, the plaintiff was in ures for his safety in doing so. The same

charge of a train load of stock backing to argument would apply, with equal force, to the docks of the stockyards to be unloaded. a case in which he had without rebuke, in In the proper performance of his work he the presence of the agents of the company, was swinging from the end to a side ladder crawled under a car standing upon the track of one of the cars in the string while it was between him and his caboose, and had after- in motion, when he was struck by the door ward met with disaster in an attempt to per- of a chute, which had been opened while the form the same feat. The reason for this is car was moving, and was injured. This court evident. In each case the danger, as far as held "that the defendant had reason to anit existed, is clearly open to all persons of ticipate that a stock attendant was liable to ordinary intelligence at the time of the per- be found doing just what the plaintiff was formance of the act. In the example we doing when the accident occurred, and that have given a car is standing on the track for it owed him the duty to keep its gates shut the very purpose of being moved, and the sec- while the train was passing''; that is to say, ond trial is made at the very instant that the plaintiff was performing his duty where purpose is being accomplished. So in this he must perform it, and had the right to excase all the facts were open to the observa- pect that it would be kept in its normal contion of the deceased at the time he made his dition. C'pon the question of contributory first trip over the fatal ground; but it was negligence it held that “if the plaintiff saw safely timed, as no train was approaching. the gates open he was guilty of negligence in This result gave him no reason for the ab- not taking care not to come into collision surd assumption that it would always re- with them.” We can find nothing in this main clear. Nothing but watchfulness could case to assist the appellant. In George v. have averted the disaster in either case. The Railroad, 225 Mo. 361, 125 S. W. 196, this danger was such that the facts in which it court held, in an opinion by Judge Woodson, consisted were open and visible at every setting forth its reasons with much clear. stage of the transaction.

ness and detail, that the law will not preThe appellant cites numerous cases, several sume a locomotive engineer to be informed of them determined in this court, in support of the exact distance from the road upon of his contention. The Missouri cases assist which he runs to a building near enough to us greatly in making an intelligible statement endanger him under possible circumstances of rules long established in this state cover- for which provision should be made by his ing the whole ground of this controversy. employer. The duty of providing for the In Murphy v. Railroad, 115 Mo. 111, 21 S. safety of the employé in such respects lies W. *62 the injured man was a locomotive | primarily upon the master. But neither the

rule itself nor any of the reasons which sup-, that would leave only 11 inches between the port it apply to a case where one, invited to tip of his shoulder and the outer line of the a door maintained for the purpose of giving engine. Upon that state of facts, can it be convenient and ample access to the house declared as a matter of law that the deceasand to all it contains, turns away and seeks ed, while walking along that line and by to enter by sufferance by a back way, dark coming in contact with the engine, was guilty and narrow, and beset with mortal perils. of such contributory negligence as to bar a As this court said in the George Case, where recovery in this case? I think not. there are two ways of performing a duty, We know, from common knowledge and obthe least dangerous one should be selected, servation, that a man in walking, and espesubject to certain limitations and exceptions, cially alongside of rapidly moving objects, one of which is that, if the conditions are is liable to lean or sway from one side or such that the safer one cannot be used, the the other; also that rapidly moving engines law will permit the selection of the more and cars passing over railroad tracks condangerous. Id., 225 Mo. loc. cit. 402, 125 s. stantly do the same thing. The law is also W. 196.

well settled that the court and jury have a We have earnestly endeavored to construct right to take into consideration their comsome plausible reason for the selection of mon knowledge and common experience in the dangerous way in this case, but even passing upon questions of fact. So, if we with the assistance of the excellent brief of apply this rule to the facts of this case as appellants' counsel, and a very able and in- disclosed by the record, it seems to me that teresting oral argument, have failed. Many the plaintiff made out a case for the jury; logical roads lead up the cinder path and to that is, whether the passageway provided by the entrance of the office, but there they the defendant, for him and others to use in vanish. From that point the respondents going to and fro in the transaction of their have little to do with the unfortunate oc- business, was a reasonably safe place for that currence, except to run their train over a purpose, and whether or not the deceased track and through surrounding conditions de was exercising ordinary care for his own signed for that purpose. The question of safety while so walking along said way to the alleged negligence of the respondents and the caboose in which he was to take pasthat of the deceased are so interdependent sage. that we have preferred to consider the facts

I therefore dissent from the majority opinrelating to them as a single proposition. Hav

ion. ing reached the conclusion that there is no evidence tending to show that the respond

SPENCER v. WYANDOTTE CONST. CO. ents were negligent in the maintenance of the situation in their yard involved in this

et al. (No. 19173.) controversy, it is unnecessary to speculate (Supreme Court of Missouri. Division No. 1. upon the question whether the unfortunate

March 4, 1918.) occurrence resulted from negligence on the ASSIGNMENTS Om31--CONTRACTS. part of the deceased or from accident.

Where a firm enters into a contract to furThe judgment of the Chariton county cir- nish ballast to a construction company which

agrees to furnish cars, and then enters into an cuit court is affirmed.

identical contract with another in its own name,

but at a less price, there is no assignment, and RAILEY, C., concurs.

the latter cannot sue the construction company

for breach of contract. PER CURIAM. The foregoing opinion of Appeal from Circuit Court, Jackson CounBROWN, C., is adopted as the opinion of the ty; Kimbrough Stone, Judge. court. All concur, except WOODSON, J.,

Action by W. M. Spencer against the Wywho dissents in separate opinion.

andotte Construction Company and others.

Judgment for defendants, and plaintiff apBOND, P. J., concurs in result.

peals. Affirmed. WOODSON, J. (dissenting). The record in This is a suit for damages arising from this case shows that the clear space between the breach of a contract dated February 3, the outer line of the engine and that of the 1912, between Corrigan, Murray & Spencer, projecting window mentioned in the opinion a partnership composed of the plaintiff, Emof our learned Commissioner was only 3 mitt Corrigan, and William T. Murray, callfeet and 6 inches; and we know from ob-ed the contractors, on one side, and the deservation and common knowledge that a fendant Wyandotte Construction Company, good-sized man measures about 20 inches called the company, on the other side. The from the tip of one shoulder to that of the petition states that Corrigan and Murray other, and should it be assumed that the de- have refused to join with plaintiff in the acceased, at the time he was injured, was tion, and are therefore made defendants, so walking along the center line of said space that they can assert their interest if any. (which is as favorable to defendant as it The petition consists of two counts. The could ask in a demurrer to the evidence), I first sets out the contract referred to, by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

terms of which the contractor agreed to fur- , through its agents and employés, to perform its nish the company or its agents crushed stone said contract and to furnish the cars required for ballasting the Kansas City, Clay County in place of Corrigan, Murray & Spencer, and in

thereby to this plaintiff William M. Spencer & St. Joseph Railway from North Kansas all things carried out said contract with thọ City, Mo., to Excelsior Springs, Mo., the plaintiff, except as herein otherwise stated and

That quantity to be based approximately on 2,000 final settlement has been made among said

W.

recognized him as the assignee thereof. cubic yards per mile of single track, and M. Spencer, Emmitt Corrigan, and Wm. T. Muralso to furnish such of the material as ray; said Corrigan and said Murray have rewould be needed for crossing approaches. ceived from this plaintiff all allowances and It was to be delivered on cars to be furnish- payments to which they were entitled under said

contracts, and this plaintiff is the owner of ed by the company, at the rate of 1,000 yards all rights and claims growing out of said conper day of 10 hours. Deficiencies in the tract with defendant. That plaintiff furnished daily amount specified were, at the request contract with defendant in accordance with

all crushed rock for ballast called for by said of the company, to be supplied by running the provisions thereof, and fully performed the at night. The contractor was to furnish all same on his part, except that plaintiff did not tools and machinery necessary to crush the place a storage bin of 200 yards capacity as

provided in said contract for the reasons that stone, and all labor, contingent expenses, the placing of said bin was waived by defendand incidental work to be done to get the ant." product into the cars.

It concluded by charging that the defendThe company agreed to permit the con- ant construction company failed and refused tractor to quarry the stone from “the right to furnish cars as required by the terms of of way,” to furnish and construct the neces- its contract, so that his force was required sary tracks to connect the crusher with the and compelled to remain idle during 468 railroad, as well as all storage tracks and hours and 55 minutes during the daytime, by storage grounds, and to pay the contractor which plaintiff was damaged in the sum of 68 cents per cubic yard for all stone so fur- $15,000, for which he asked judgment. nished, payable from time to time on ap

The second count sets out these same conproximate estimate by "the engineer.”

tracts, an charges the same intention to Bond was required from the contractor for assign the first by the execution of the secthe performance of the work.

ond, and the prosecution of the work with It then pleads another contract which it the full knowledge of defendant company. sets out in hæc verba, dated February 1912, "between W. M. Spencer of Excelsior operate at night, the compliance of plainSprings, Mo., party of the first part, here- tiff, the failure of defendant to furnish cars inafter called the constructor, and Corrigan, for the removal of the product, and the conMurray & Spencer, of Missouri, party of sec, sequent damage to plaintiff in the sum of ond part, hereinafter called the company.” $10,000, for which judgment is asked. This contract is practically, after the intro

Defendant Corrigan demurred generally to duction quoted, in the same words and fig- each count of the petition. The construction

as the agreement between Corrigan, company demurred to both counts on the Murray & Spencer and the Wyandotte Con

following grounds: struction Company, except that the compen

“(1) That there is a defect of parties plaintiff sation to be paid to the contractor (plaintiff) in said petition. (2) Said petition does not state is fixed at 61.2 cents per cubic yard instead facts sufficient to constitute a cause of action." of 68 cents, the partial payments were to be These demurrers were sustained, plaintiff made on approximates of the engineer of the dismissed as to defendant Murray, and deWyandotte Construction Company, instead clining to plead further this judgment was of simply the engineer, and no bond was re- entered for the other defendants. quired from plaintiff.

John M. Cleary, of Kansas City, and WilThe count then proceeded as follows:

liam A. Craven and Harris L. Moore, both "That by the execution of said contract it was of Excelsior Springs, for appellant. Hogsett the intention of all parties thereto to assign to & Boyle, of Kansas City, for respondent Corthis plaintiff the interest of said William T. rigan. John E. Dolman, of St. Joseph, and Murray and Emmitt Corrigan in said contract Inghram D. Hook and Cooper, Neel & heretofore entered into with this defendant and to substitute this plaintiff for said Corrigan, Wright, all of Kansas City, for respondent Murray & Spencer in the performance of said Wyandotte Const. Co. contract with defendant, and the said interest of Murray and Corrigan was thereby transfer BROWN, C. (after stating the facts as red to this plaintiff. That the said parties at- above). I. This is a suit against the de tempted to accomplish said purpose by substituting the name of said Spencer for Corrigan,

fendant Wyandotte Construction Company, Murray & Spencer, and substituting the name a corporation, founded upon a contract beof Corrigan, Murray & Spencer in place of the tween that company and a partnership namsaid contract heretofore entered into with de- ed Corrigan, Murray & Spencer, of which the fendant. That by virtue of said contract this plaintiff was one of the copartners. The plaintiff immediately began the performance, original codefendants with and thereafter fully performed the same

the company, behalf of Corrigan, Murray & Spencer with the Corrigan and Murray, were the others. The full knowledge, acquiescence, and consent of de- undertaking of the partnership was to prefendant, and the defendant thereafter undertook, pare and furnish rock for the ballasting of

ures

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