Harris v. Missouri Pacific Railway Co.

Ellison, J. Plaintiff is the daughter and only child of John Harris, who was killed by defendant’s engine and cars on March 10, 1887. He did not leave a widow. The action is founded upon a petition declaring on defendant’s negligence in not warning deceased of the approach of the train. The answer was a general denial and contributory negligence. There was a judgment for plaintiff and defendant appeals, assigning among other alleged errors that the court should have sustained the demurrer to the testimony. The case as made out by plaintiff shows that deceased had lived in Warrensburg, and had, before entering defendant’s service, worked in a mill at that place, near defendant’s railway tracks, upon which trains were constantly passing. That he entered defendant’s service as a day laborer, two days before the accident. That he was set to work at fence-building with a gang of fence-builders between Independence and Kansas City. The “gang” being in charge and under.the orders of a foreman. Between Independence and Kansas City defendant has a double track running east and west. At the place where the work was going on there is a sharp curve, which prevents a train coming from the east towards Kansas City from being seen by a person on the track at a greater distance than two hundred feet.' This was the least distance put by plaintiff’s witnesses. There were posts lying scattered on the south side of the tracks, which were being used in building a fence on the line of the right of way north of the north track; that is, the posts on the south side of the tracks were being used in the construction of the fence on the north side of the track. Deceased, with a companion, was engaged in carrying [262] these posts across the two tracks, and, while he and his companion were returning to the south side for more posts, a freight train of twenty or more cars was passing east, at the rate of ten or twelve miles an hour, on the south track ; the south track being used by eastbound trains and the north track by west-bound trains. They stopped on the north track, just inside of the south rail, apparently waiting for the freight train to get by, and apparently observing its movements only. While at this place and in this position, a passenger train from the east, on the north track, coming around the curve at a speed of thirty-five or forty miles an hour ran over and killed both deceased and his companion. Deceased began work at this place on the evening of the eighth and worked that evening, all of the ninth and up to eleven o’clock the morning of the tenth, the hour of his death. During this time trains were constantly passing each way; besides regular trains, there was an accommodation between the two cities. The foreman had cautioned the men to be careful, though one of them testified he did not hear it. Deceased knew there was no one placed as a watchman to give warning of an approaching train. It is quite evident from this recital of the showing made by plaintiff that the death of deceased was directly brought about by his own negligence. While it. does not appear that he was carrying posts during all of the time he was working at the place of the accident, yet he was during the whole period working on the right of way where he could observe the trains as they passed in either direction. He knew that trains were passing at frequent intervals ; that on the south track they passed east and on the north track they passed west; that on the north track they would come around a curve a short distance from where he was working. Yet with this knowledge he stopped on the north track in such a position, either that he could not see in the [263] direction that trains would come, or allowed himself to become so absorbed in watching the passing freight train as to be oblivious to other matters. He was evidently not on the lookout for his safety, for he could easily have saved himself by clearing the track. Though allowing that he could not have seen the train more than two hundred feet away, and that it was approaching him at the rate of forty miles an hour, he would have had ample time to have escaped collision ; a single step would have been sufficient. It must be borne in mind that there is no question made here as to negligence on the part of those in charge of the train. The whole negligence charged in the petition is upon the foreman of the fence laborers, and to such negligence plaintiff must be confined. Ellis v. Railroad, 17 Mo. App. 126, and cases cited. We are, however, cited to the case of Gessley v. Railroad, 32 Mo. App. 413, where it was decided by this court in an opinion by Hall, J., that persons who are lawfully upon a railway track engaged in labor “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” upon the railway company of active vigilance for their safety. That case is not applicable to this. The facts are unlike. Here deceased was not engrossed in his work. The most favorable thing that can be said of him is that he was waiting for the freight train to pass by, that he might proceed on after posts. But in thus waiting it was not necessary for him to stop on the north track, or, if he did, it was gross carelessness in him to so place himself that he could not see a train coming on the north track, knowing, as he must have known (this being his third day’s work at the place), of the frequency of trains from the one direction. It is one of plaintiff ’ s principal contentions that it was the foreman’s duty to have warned him of the [264] approach of the train. Whether such warning should have been given by telling him that a train would pass at that time, or by placing a watchman to warn him, is not stated. If the former, it may well be answered that deceased had full knowledge of the great number of trains passing in one direction on this track, and it would have been idle to tell him, under these circumstances, of any particular train, especially in the light of the warning he had to be careful. If it is meant to' contend that the foremau should have placed a watchman on the lookout, we may concede for present purposes (though not so deciding) that it was his duty to do so, yet deceased knew he had not performed that duty. He knew that there was no one upon whom he could rely to warn him, and with this knowledge he voluntarily put himself in the dangerous position. . It' is familiar law that the master must furnish “the servant with safe machinery with which to work, yet if he has not done so and the servant has knowledge of the defect and of its dangerous tendency, and yet voluntarily continues in the use of such machinery, he cannot recover damages for an injury resulting from such defect. Devitt v. Railroad, 50 Mo. 305; Hulett v. Railroad, 67 Mo. 239. This proposition is alike applicable to one who voluntarily continues, without objection, in the employment of the master with a knowledge of the dangerous or incompetent character of a fellow servant. McDermott v. Railroad, 87 Mo. 285. It is alike applicable to one who takes employment and engages to do service under another who bears the relation of vice-principal to the master. McDermott v. Railroad, supra. So, notwithstanding that deceased and the foreman were not fellow servants (Moore v. Railroad, 85 Mo. 588), yet deceased knowing of the foreman’s negligence in not providing a watchman continued in the service without complaint. In doing so he too/c upon himself the risk of injury resulting from [265] such negligence. See authorities collected by. defendant’s counsel. The McDermott case, supra, deals directly with this question and the justness of the rule could not well be better or more clearly demonstrated than is done by Judge Henry in that case. Our opinion, therefore, is, that under the evidence plaintiff is clearly not entitled to recover. This disposition makes it unnecessary to discuss other points presented. The judgment will be reversed. All concur.