Gessley v. Missouri Pacific Railway Co.

Hall, J. — This was an action for damages on account of personal injuries alleged to have been caused by the defendant’s negligence. The material portion of the petition is as follows: “That on or about the eleventh day of June, A. D., [417] 1885, plaintiff entered into a contract with defendant, that defendant, in consideration of the sum of thirty-two dollars and ninety-five cents, agreed to be paid by plaintiff, agreed to carry a car-load of lumber from Franklin station, in Howard county, Missouri, to Kansas City, Missouri ; that it was necessary for defendant, preparatory to the shipment of said lumber, to place the empty car on one of defendant’s side-tracks or switch at said Franklin station, at some convenient place, that plaintiff might load the lumber upon or in said car; that defendant did place said car upon its side-track or switch at said Franklin station, and notified plaintiff of the fact; whereupon plaintiff and his servants commenced to load said lumber on or in the car, and while plaintiff and his servants were so engaged in loáding said lumber on said car, without any notice whatever, the agents, servants and employes of defendant, who were conducting and managing an engine of defendant that had backed in upon said side-track, carelessly, negligently and recklessly backed the same up against a lot of cars that were standing upon said side-track and moved the same back up and against the said car that was being loaded with lumber, by reason of which it was suddenly put in motion and backed, and one end of some lumber partially loaded in said car caught upon the depot platform; the other end of said lumber caught plaintiff’s foot between it and some lumber loaded in the car, plaintiff at the time being inside the car receiving the lumber as it was passed in to him by his employes, and plaintiff was thereby greatly bruised, hurt and injured, his foot mashed and cutting the ankle joint about four’ inches in length down to the bone and bruising the leg; above, whereby plaintiff suffered great pain and agony,, for a long space of time was- confined to his bed, unable to take off his pants for three weeks, and for a long space of time unable to attend to his business, and has not recovered from said injury, but still suffers pain and great inconvenience therefrom, and is permanently injured and damaged to such an extent that he will [418] never recover therefrom, bnt is and will be suffering pain and great damage from said injuries.” The petition clearly alleges that the defendant’s servants and agents carelessly, negligently, recklessly, and without any notice whatever, backed an engine and cars against the car plaintiff was loading. The averment of the petition as to the want of notice to plaintiff is perhaps slightly awkward, but the meaning of it is clearly as just stated by us. The criticism of this averment of the petition by defendant’s counsel is without merit in our opinion. “The general rule is, that to persons who are lawfully upon the track, engaged in labor, the railroad company owes a duty of active vigilance, and such persons have a right to become engrossed in their labor to such an extent that they may be oblivious to the approach of trains, relying, as they may, upon the duty imposed by law with reference to them. ” 1 Thomp. on Neg. 461. In applying this general rule to a particular case, it has been well said : “When a railroad company puts loaded cars upon a side-track for the purpose of being unloaded by the owners of the freight, and such owners, their agents, or servants, with the express or implied consent of the company, proceed to remove the freight, the company in such case has no right, without special notice and warning, to run or back a train in upon the side-track while the cars are being unloaded. And while in such case those engaged in the work of unloading are not permitted to close their eyes or ears to what comes within the range of those senses, yet they may give their undivided attention to their work, and are justified in assuming that the company will not molest them or render their position hazardous, without such notice or warning. That such is the law is well settled by authority.” Railroad v. Goebel, 1 West. Rep. [111.] 691. In giving and refusing instructions, the trial court acted in harmony with this general rule, and properly so. The conductor in charge of defendant’s train charged with having caused the accident in controversy, testified for the defendant. He testified that it was his [419] duty to give notice to plaintiff, and that be did give-such notice. In cross-examination, against tbe objections oí defendant’s counsel, tbe plaintiff’s counsel was permitted to ask tbe following question: “Now, if you failed to give that notice, I ask you if you would be discharged?v To tbe question tbe witness made this answer: “Ten chances to one we would, if we done any damage.” The question was proper for the purpose of affecting the credibility of the witness by showing his interest in testifying to the giving of notice and thus exonerating himself. The case was fairly tried. Judgment affirmed. All concur.