VanCamp v. Wabash Railroad

ELLISON, J. Plaintiff is the widow of Samuel VanCamp, who was one of defendant’s employees and was killed by being thrown from a standing car which [348] was struck by a car propelled against it by defendant’s switching crew. The judgment in the trial court was for the plaintiff. The principal difference between the parties to this controversy relates to conclusions drawn from facts either concealed, or shown by indisputable evidence. The deceased had been in defendant’s service for several years. He was a car repairer, at Brunswick, Missouri. He got upon a car which was standing on a side track of defendant’s railway, for the purpose of repairing some part of it. It became necessary to remove some of the coal out of the way and this he proceeded to do. While he was thus engaged he must have known that cars were being switched from one track to another. He knew that the rules of the defendant required that when a person was working upon a standing car like the one in controversy, he should first put up a warning, which consisted of a blue flag about eighteen inches square, attached to a stick or pole about three feet long and set out on the car. He failed to put out such warning. Those of defendant’s employees engaged in switching had a car which they washed to put in on the track upon which was the standing car. The switch was thrown and the car was “kicked” onto that track and it ran on down to the standing car and struck it with such-force as to cause deceased to fall off, when he was run over and killed. The point where the car was thus switched or “kicked” onto the track was about five hundred feet from the standing car. The -evidence establishes beyond any doubt the negligence of the deceased in getting upon the car and proceeding with his labor without putting out signal or warning. This is practically conceded, as well it may be, for the rules of the defendant cannot be violated with impunity by one of its servants. The Supreme Court of this State has well said: “It would be most unreasonable and unjust, after imposing upon the master the duty of promulgating a rule for securing the [349] safety of bis servant, to permit tbe servant to recover from tbe master damages for injuries wbicb tbe observance of tbe rule would have prevented. As tbe master is bound at bis peril to make tbe rules, tbe servant should be equally bound at bis peril to obey them. In sucb case tbe disaster is brought upon tbe servant by bis own voluntary act, and be, and not tbe master who bad discharged bis duty, should bear tbe consequence.” [Francis v. Railway Co., 110 Mo. 387.] A text writer says on this subject: “Where an employee of a railroad company receives an injury wbicb is caused by bis action in direct violation of a reasonable rule, made by tbe company for tbe safety of its employees, of which rule be has notice and has promised to obey, be must be deemed guilty of contributory negligence and cannot recover damages from tbe company for sucb injury.” [1 White’s Personal Injuries on Railroads, sec. 437.] But plaintiff advances a theory in avoidance of sucb negligence by contending that tbe case, as made by her, shows that tbe car would have been run into tbe standing car even though deceased bad obeyed tbe rules and put out tbe blue flag. That is, she says tbe deceased’s negligence was not tbe proximate cause, as tbe collision would certainly have occurred even though tbe warning bad been up. Tbe effect of plaintiff’s theory is to throw tbe case under tbe humanitarian rule and that rule, for all practical purposes, was in reality called to plaintiff’s aid by her instruction No. 4. But by whatever name plaintiff’s theory may be designated, it will be covered by what we shall here say in disposing of tbe case. We will give to plaintiff tbe benefit of her statement of tbe situation. It is substantially this: That deceased was engaged on tbe standing car, getting ready to repair it by moving material out of bis way. That bis back was to tbe point, five hundred feet away, where tbe other car was being switched onto bis track. That tbe switchmen could not have looked for a [350] warning flag on the standing car, for the reason that though the distance was five hundred feet, yet if they had looked for such warning they would have seen deceased standing on the car, since the view was unobstructed and deceased was a much larger object than the flag. We do not think plaintiff's conclusion follows. The switchman knowing of the standing car and the- rules of his employer requiring a car repairer to display a blue flag by day and a blue light by night, would, while in the act of switching, be on the look out for a blue flag and not a man. His mind, if he was doing his duty, would be occupied with the thought of discovering Avhether there was the warning which the rules required him to look out for. When the occupation of the switch-man, in the situation in which he was, is considered, it is going too far to convict him of being conscious of seeing deceased when he was looking for a signal. The recent case of Hall v. Ry. Co., 219 Mo. 553, 588, was where a trespasser was on a standing car which was struck by a car switched by a “kick,” as the one in this case. It is there said that it was the duty of the engineer involved in that case to be watching for signals from the brakeman rather than cars. And that while the engineer had his face in the direction of the plaintiff, “this does not show that he saw the plaintiff.” And that in such case, “the evidence is not sufficient to convict the engineer, nor the defendant, for the alleged negligence of the engineer.” While the plaintiff on the standing car in that case was a stranger and a trespasser, yet so far as the point of seeing him was concerned, the cases are alike; since in this case the switchmen would not be expected to suppose that an employee would be on a car without displaying the required warning. But there is ample ground for reversing the judgment aside from the foregoing. Let it be assumed, as stated by plaintiff, that the switchman saw deceased standing on the car five hundred feet away, with his [351] back to him and no warning flag ont. What ought we to say, in fairness and reason, did that signify to the switchman? He would say to himself: “There is VanCamp, an old employee, familiar with the rules requiring him to display a warning flag. None is displayed, which means that he is only there for the moment and he will get off before this car reaches him.”' Is not the deceased’s failure to put out the flag tantamount to saying to the switchman, if he could have been heard at such distance, “Let your car come on. I am going to get off,” or “I will brace myself,” or “I will sit down on the car?” If he had done either of these things he would not have been hurt. It is thus seen that the judgment is not sustained by good reason. If Van-Camp’s injury had not resulted in death and he had been the plaintiff, seeking damages, he would have occupied the position of inexcusable negligence himself and yet seeking to have the defendant’s servants convicted on the merest conjecture or possibility. The happening of his death does not alter, in this respect, the character of the case. The judgment is reversed. All concur.