Power v. Wabash Railroad

ROY, C. This is an action for damages on account of the death of plaintiff’s husband, Alonzo Power, tried in the Gentry county circuit court, where, on a peremptory instruction in the nature of a demurrer to the evidence, there was a verdict for defendant ¡and plaintiff has appealed. The deceased had been employed as a section hand of defendant almost two years, working on the section at Stanberry. On October 25, 1907, a freight train of twenty-nine cars was wrecked about twenty-two miles ■east of Stanberry, just oast of what is known as the — 5 — “curve trestle,” tearing up a large portion of the track. The west end of the torn-up track was so close to the trestle that the men, including the deceased, unloaded ties and rails during the afternoon within sixty feet of the trestle and carried them down the track to the place where they were needed. The wrecking train, consisting of a dining car, a truck car and a supply car, carrying the plaintiff’s husband and a large number of other section men picked up from Stanberry along the route, reached the wreck about half past one in the afternoon. Prom that time all was quick and rapid action. The cars were shifted from point to point, and left standing as the exigencies of the work required. Near five o’clock the work train was run four or five miles back to McPall in order to let trains from the east and west transfer passengers and mail at the wreck. Then the work train went back to its work, reaching there probably a little late for supper. The trestle was about twenty feet long, under which was a farm'crossing, with precipitous sides, apparently a ravine about twenty feet deep. There was no railing along the sides of the trestle and no guards at the end. When night came on it was misting rain and at eight-thirty o’clock was, of course, very dark. Neither the ears nor the trestle were marked with lights. The glimmer from bonfires, torches, and probably an occasional lantern from the eastward revealed. the dim outline of cars on or near the trestle, but did not show the trestle, or bank. Several workmen had torches, and-some of them used torches in going to and from supper.0 Prom the time the train had returned from Me-Fall, the workmen, from time to time, as their work would permit, had been going in squads of four or five to their supper which was served in the dining car standing west of the trestle. In the meanwhile the train including the dining car was shifted from time to time. So far as the evidence shows, the workmen — 6 — who had gone to supper before Power started, had all passed over the trestle without being obstructed by a car thereon. Two of them with a torch had returned over the trestle from supper to where Power was working just before he started to supper. About half after eight Power, accompanied by Oogdill, Wilson and Gray, his fellow workmen, started to supper. Oogdill and Wilson were witnesses for the plaintiff, but they differed radically' in their testimony. Oogdill says, that they walked on the outside of the ties in going along the track to their supper, giving as a reason for so doing as follows, “well, it is a whole lot -easier walking out there than it is stepping from one tie to the other.” Wilson testified that they were all walking between the rails on the track, and that when they reached .the cars, Power and Cogdill stepped off the north side of the track, and he and Gray off the south side. All started around the cars. At that time one of the cars was standing partly on the trestle and partly east of it. .It had not been there over thirty minutes. Some workmen with a torch had returned from supper over the unobstructed trestle to where Power was at work just before Power and his companions started. The dining car was further on west. All six of the plaintiff’s witnesses, who were all at the wreck, testified that they knew about the trestle; and four of them said that Power worked at times within sixty feet of the trestle. The deceased had no knowledge of the vicinity, except what he acquired on that occasion. The principal part of the wreck was about three hundred and sixty feet east of the bridge. Oogdill testified as follows: “'Q. I will ask you to tell the jury whether you walked up to supper with Mr. Powers that evening or started to? A. Yes sir. I walked up on the north side of the track — -on the cinders. We wasn’t on the ties. The truck car was on the culvert, and the supply car, with rails and ties, was east. Before we got to the culvert, recollect, I said — 7 — to Lon — I said: ‘ Lon, there is a bridge here some place, bnt I don’t know where-abouts.’ I knew there was a bridge there, and so did he. He says: ‘Well, you follow me. ’ Of course I won’t make the remarks he did. He said: ‘You follow me and I will take you through all right.’ Well, he hadn’t any more than got the words out of his mouth until he fell. Well, I stepped on the block he fell off of. I come that near falling. “Q. At that time, you didn’t know you were that close to it? A. I didn’t know we were that near the culvert. “Q. And he didn’t either? A. If he did, he wouldn’t have fell. “ Q. If you had been in front of Mr. Powers, this accident would occurred to you? “By Mr. Perry, Counsel for Defendant: Hold on, I object. A. I don’t know whether it would or not, because— “By the Court: Hold on. When an objection is made, you must keep quiet until I pass on it. “Q. Well— A. I’ll tell you, Mr. Showen, if he hadn’t knowed the road so well, I wouldn’t have followed him. But he knew where he was going. But I didn’t. I knew there was a bridge there, and I was going to take care of myself. I wouldn’t have went just then. There was nobody told us to go to supper at all.” Wilson testified as follows: “Q. Tell the jury, then, just how he went and all about it, up to the time of this accident. A. There was Harry Gray and myself arid Mr. Cogdill — William Cogdill — and Mr. Powers started up the track to the dining ear. We came to those cars, and we stepped off — Harry Gray and myself stepped off on the south side of the track, and Mr. Cogdill and Mr. Powers on the north side, and, about that time, I spoke to Harry and told him we were getting somewhere near that — 8 — culvert. I couldn’t tell just where. He stopped and he said, ‘Yes.’ I heard a naan fall then. About that time, Mr. Cogdill called to Mr. Powers, he didn’t answer him, and I says: £Mr. Powers fell in that culvert.’ ” The petition was broad enough to cover all phases of the evidence and the answer is a general denial, and also a plea of contributory negligence and the assumption of risk I. Let it be conceded for the purposes of this case that it was not negligence on the part of the company to have no rails or guards at the trestle; and also that it was not negligence under the circumstances to let the car stand on the trestle as shown in evidence. We do not undertake to pass on those questions, but concede them in order to get right at the main points in this case, i. e.: Were the circumstances in evidence such as to authorize a jury to find that the defendant was negligent in failing to mark the location of the trestle by a light or lights so that passing workmen would see the embankment and not fall over? And is the evidence such that the trial court was justified in holding as a matter of law that the deceased was guilty of such contributory negligence as prohibited plaintiff’s recovery? ■ • The changes along and on that railroad track at the scene of the wreck, after the work of reconstruction began had been kaleidoscopic.- The track was being reconstructed, wrecked.cars were being removed. Old land.marks were constantly disappearing and new ones taking their places. Daylight was gone and the clouds and rain intensified the darkness.. The,flicker of distant lights revealed .prominent objects, such as cars, in dim outline, but intensified the darkness at their feet. There is nothing to show from what point deceased started to supper; but, supposing he went from the point of the principal damage, he had over a — 9 — hundred yards to go before reaching the trestle. Power knew about the trestle; but there is no showing that there was any object near the trestle by which the attention of one passing by would be called to it. Did he think that the trestle was beyond the car and that it was unobstructed for passage? Such a conclusion may be drawn from the evidence. If the evidence showed that he knew the relative position of the car ,and the trestle, of course it was fatal negligence in him to proceed as he did. Evidently the men could not see the trestle or the passage under it even a step in front of them. The very facts relied on by defendant as showing contributory negligence bear the opposite construction. When they started around the car Cogdill said to Power, “Lon, there is a bridge here some place, but I don’t know where-abouts.” Power said, “You follow me and I will take you through all right,” and at once fell to his death; and Cogdill, alert as the evidence shows he was, would doubtless have fallen if Power had not. The evidence of Wilson shows that he and Gray might have fallen if they had not at the moment heard Power fall. Counsel for defendant cite Thomas v. Railroad, 109 Mo. 1. c. 199, where it is said in speaking of the workmen, “He must not go blindly and heedlessly to his work, when there is danger. He must inform himself. This is the law everywhere.” That is certainly law which no one doubts. But suppose he did just twenty or thirty minutes before ascertain that the trestle was clear and that one car was east of the trestle and the others, including the dining car, were west of the trestle, and suppose that, under all the circumstances, he reasonably believed that tbe situation in that respect remained unchanged, would not his act be based on what he supposed was actual knowledge that the way was safe? When he said “Follow me, and I will take you through all right” he may have been — 10 — acting carelessly, or lie may have been acting from a reasonable conviction that the danger was not at their feet, bnt that the unobstructed trestle was further on. Neither do we think that Railroad v. Jackson, 65 Fed. 1. c. 50, is like this case. That was a- case of tearing up, moving and relaying a portion of the track which was in danger of being washed into the river by high water, It was held that the workman had no reason to suppose that the right of way where he was at work would be kept free at every moment from all such impediments as might cause him to lose his footing. In this ease the dangerous condition was not in that part of the road being reconstructed. The condition of the trestle *and the crossing was not being changed. It remained untouched by the work that was going on. It was between the workmen and their supper; a situation created by the defendant. A lantern hung at nightfall on or near the trestle would have prevented all mistakes. Counsel for appellant in their printed argument say that deceased had worked in sixty feet of the trestle all that afternoon. The record shows that at times he did so work, but that he was in a work which took the workmen along the track the full length of the wreck. If it were a fact that he worked all afternoon-in sixty feet of the trestle, we could presume he started for his supper from the point where he was at work and then knew that the trestle was about sixty feet in front of him. In that case the contributory negligence would be evident enough. But the evidence shows that he worked all along the line of the wreck, and may have had the full distance to go to his supper. It may be that without being negligent, he miscalculated the distance he had to go to the trestle. He may have been depending on some landmark that had disappeared or had changed its position, as, for instance, the car. His — 11 — last words clearly show that he was confident that the trestle was further ahead than it was. In Huhn v. Railroad, 92 Mo. 1. c. 450, it is said that where different inferences may he fairly drawn from the undisputed facts, the question of negligence' should he submitted to the jury. See also Paden v. Van Blarcom, 181 Mo. 1. c. 128; Powers v. Transit Co., 202 Mo. 1. c. 280; Railroad v. Ives, 144 U. S. 417. The cause should not have been taken from the jury. The judgment is reversed and the cause remanded. Blair, G., not concurring. PER CURIAM. This case coming into Banc from Division Two on the dissent of Ferriss, P. J., was heard in Banc and the opinion of Rot, C., was adopted by the court. Valliant, G. J., Woodson, Kennish and Brown, JJ., concur — Woodson, J., in separate opinion. Graves and Ferriss, JJ., dissent, adopting therefor the divisional opinion of Blair, G., in which Lamm, J., concurs in a separate opinion filed.