Walker v. Wabash Railroad

REYNOLDS, P. J. (after stating the facts).— Learned counsel for appellant, both orally and by printed brief, have argued the case with great ability, and have presented many grounds on which they claim the judgment should be reversed. ,Their main contentions, however, and those on which we think the case turns, are covered by their first ground, in which it is argued that the petition does not state a cause of action and that the court erred in overruling defendant’s objection to the introduction of any evidence. It is urged under this, that as the petition charges that.the operatives of the engine could have seen decedent on the track, it necessarily follows from such alleged fact that the decedent, by looking, could have seen the engine, therefore in failing to see the engine and allowing himself to be struck thereby, decedent was guilty of such contributory negligence as bars a recovery. We cannot agree to the proposition, on the facts here, that because the petition charges that the decedent could have seen the approaching engine, and that failing to see it and get out of danger, he was guilty of contributory negligence barring recovery. The cases cited do not support any such doctrine. The question here as to that is, not could he see, but did he — 266 — see the approaching danger, and was he warned of it? It is further urged that notwithstanding there was a failure to sound the hell and whistle, and that such failure may have been negligence, that unless the petition states a cause of action for a recovery under the humanitarian doctrine, there can be no recovery, it being urged that the petition charged that the decedent was not actually seen but that he could have been seen by the use of ordinary care, and that as the decedent was an employee in the switch yards there was no duty to keep a lookout for him, and the petition “finally fails to state a cause of action. ’ ’ Degonia v. St. Louis, Iron Mt. & Southern Ry. Co., 234 Mo. 564, 123 S. W. 807; Cahill v. Chicago & Alton Ry. Co., 205 Mo. 393; 103 S. W. 532; Gabal v. St. Louis & San Francisco R. R. Co., 251 Mo. 257, 158 S. W. 12, are relied on in support of the main argument. Particular reliance is placed upon the decision in the Gabal case. On the facts in the case before us we do not think that any of these cases are applicable. The prevailing idea in the Degonia case and those following it, is that the engineer managing the train had a right to expect a clear track at the place where the employees were working. Not only do no such facts appear here, but the direct opposite is the case. The operatives of this engine on track No. 3, as well as all others moving their engines in this yard, had no reason to expect a-clear track; on the contrary, they knew-that it was more in the nature of a concourse, a place resorted to, not only by the employees in the discharge of their ordinary work for the railroad company, but by other people; that outsiders were constantly in the habit of crossing these tracks in this yard. Plence we hold that the duty was clearly upon them to be on their guard for persons apt to be crossing or using the tracks, and it behooved them, when they were moving their engines through this yard, not only to be on guard, but to give — 267 — at least some sign or signal of the fact that they were moving along the tracks through the yard. ■ ’ The rule of the company given in 'evidence required that “The engine hell must he rung when engine is about to move.” Appellant relies on this rule as not only conclusive hut as exclusive. There was also another rule given in evidence that “The unnecessary use of either bell or whistle is prohibited. ’ ’ This is also claimed as in effect prohibiting the ringing of the bell while running through the yard. These are printed rules. There was testimony tending to prove, that outside of these printed and promulgated rules, it was the habit and custom of those moving the engines down through the yard to keep the hell ringing and-to sound the whistle while moving. As held by our court in Lewis v. Wabash Railroad Co., 142 Mo. App. 585, l. c. 597, 121 S. W. 1090, “if a settled custom or usage had been followed with the sanction of the company, this was in effect a rule which plaintiff was entitled to have observed for his protection, and the violation of it was as much a tort as if it had been printed and published.” While it is true that the rule introduced in evidence required the bell to be rung “when an engine is about to move,” it does not follow from this that by custom this rule may not have been enlarged and extended to cover the movement of trains through the yard, and require the bell to be rung while the engine was moving through the yard. There was evidence here of such a rule and custom and that is as binding as if made by formal promulgation. Nor do we understand that the rule prohibiting the unnecessary use of either bell or whistle is here applicable. “Unnecessary” is a very flexible word. It surely does not mean to say that it is unnecessary to sound any warning in a place of danger, as here; a place of common and frequent use. If it means that, it is unreasonable. It is true that in Aerkfetz v. Humphreys, — 268 — 145 U. S. 418, Mr. Justice Brewer. bas said (1. c. 420): “The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forwards and backwards, would have simply tended to confusion.” There is no evidence that at the time of the accident any train or any engine was in motion in these switch yards other‘than the engine on track No. 3; no evidence of any noise then and there which would have prevented Walker from hearing a signal if one had been given from this engine. While the above quoted part of Mr. Justice Brewer's opinion is quoted by our Supreme Court in the. Cahill, Degonia and Gabal cases, supra, we do not think it has been applied as controlling in such a case as here before us by our courts. Certainly on their facts none of those cáses meet the case now before us. In Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S. W. 185, Judge ValliáNT has by implication, and in Bender v. Weber, 250 Mo. 551, 157 S. W. 570, Judge Lamm has expressly, held (l. c. 561): “In the next place, a good rule, of every day service, is that judgments of appellate courts on one state of facts may not be applied automatically to another state of facts, but, contra, the general language in decisions must be read in the dry light of the very case held in judgment, and not otherwise.” State ex rel. Bixby et al. v. Kreismann, 241 Mo. 231, l. c. 238 et seq., 145 S. W. 801; is cited for this, which see. Even with that rule in mind, it seems to us that the case- which most nearly announced the one here applicable is that of Morgan v. Wabash Ry. Co., supra. It is true that case Was one in which it was a trespasser on the tracks who had been run over and killed. But it has many features in common with those here present and we think it applicable in its announcement of the duty on the part of those operating a locomotive, who, by reason of the fact — 269 — that the locomotive was running backwards, with its tender loaded and piled up above so as to prevent those on the engine seeing ahead, to exercise due care, and in fixing a liability on the employer for damages for neglect in using due care to guard against persons on the track. In the case at bar there was evidence from which the jury had a right, notwithstanding the evidence to the contrary by the engineer and fireman, to find that these men were negligent in not taking, any precaution to see that the decedent or others were not walking along the track. There is strong and persuasive evidence that Mr. Walker was doing so in entire obliviousness of approaching danger. Nor had he any reason to anticipate danger. He knew the engineer and fireman had seen him walking along toward the,east; that the fireman knew he was going to the cars at the far eastern end of track 4; that he was in close vicinity to the train on track 3; that it gave no indication of any intended movement, and he had a right to expect that if it did move it would give some signal to manifest that. The testimony for defendant itself tends to show that this engine just “glided” or “drifted” along before overtaking and running over the decedent, making no noise. A witness for plaintiff said it just came “creeping” along towards Walker. Both the- engineer and fireman admit that they saw decedent walking down between, the tracks just before or as they started. The fireman, said he knew, or supposed, Walker was going down to take the numbers of the .cars on the far east end of track No. 4. Each of them testified that looking out on the north and south sides of the engine, they did not afterwards see him. What then had become of him? Had the ground. opened and swallowed him? He was not in their sight. The most ordinary care should have warned them that as. he was not in sight, he was apt to be at no place other — 270 — than in front of them and on track 3. The fact that no one nearer than seventy, or one hundred and thirty-five, or one hundred and sixty-five feet in front of the engine (and counsel for appellant claim that the last named measure has been here demonstrated with mathematical accuracy, and that such demonstration of the physical fact must prevail over the mere estimates of witnesses who placed it at as close as thirty-five feet) could be seen from the engine cab, ought to have warned them to cover this blind and dead space by some sort of a lookout. It was their duty to do so. They had no right to drive this machine through this dead — this blind — space, without seeing that it was safe, free from the presence of passersby. So it was held in the Morgan case, supra, and in that case those in control of the engine had a right to expect a clear track. Here they had no such right; on the contrary, they were backing down through a place in common •and frequent use. It is true that the engineer and fireman testified that as they started and as they ran for a couple of car-lengths the engine bell was ringing. The conductor of their train, however, testified that if the bell was rung, he did hot hear it and so the boy on the rear of the caboose, and the bystander, the latter the only eyewitness testifying to the transaction, testified. Hence whether the bell was rung at starting, and had been kept ringing while going'down the yard, was a question of fact' for the determination of the jury. If the jury found as a fact that no warning was given, then, under the facts here, defendant is liable. As said' by Judge Valliant in Morgan v. Wabash Ry. Co., supra (l. c. 281): . “The very composition of this train, the necessity of running it as it was, the impossibility, under the circumstances, of the engineer and fireman seeing from — 271 — their -usual positions on the engine the track in front of them, created a necessity for placing some one of the crew where he could see/ ’ - In the case at bar, without holding that it was necessary to have placed some one of the crew in front of the tender, we do hold that it was gross carelessness and negligence for the engineer to have run this train through this concourse, frequented by a multitude of employees and outsiders, silently, noiselessly and without any warning whatever.- Ordinary regard for the safety of human life, required those operating such a machine as a moving locomotive, to see to it, when running through such a place as this yard, that they had a clear track. Of that duty the operatives of this locomotive, according to their own testimony, were oblivious. Rules or no rules, they had no right to run this machine through this yard without sound or warning.' Doing so, under the facts here present, the jury had a right to find, as they did, that defendant is liable. With these pertinent facts in the case, which were all before the jury, it is unnecessary to attempt to go into the theories which have governed other cases, in an attempt to palliate the obvious and gross carelessness and negligence of these employees of the defendant in this particular instance. Some point is made against the admission of parol evidence as to the rules and custom covering the ringing of a bell. What we have said here disposes of that. Referring to the additions which the court made to the instructions asked by defendant, we see no error in these additions. In the first, as asked by defendant, it was sought to instruct the jury “that it was the ■duty of the deceased when going in and around defendant’s yards, to make use of his faculties for his own protection and safety, and if you believe from the — 272 — evidence in this case that the deceased went upon the track where a train was standing likely to soon move in his direction, or went upon the track in front of an approaching train, without looking or listening for said train, and if by the exercise of ordinary care on his part he could have seen said approaching train but failed to do so, and was thereby run over and killed, then he was guilty of contributory negligence and plaintiff cannot recover and it is your duty to return a verdict for the defendant.” In the other instruction as asked by defendant the court was asked to instruct the jury “that under the law of this case it was the duty of the deceased in going upon tracks in and around the defendant’s yards to look out -for his own safety and the defendant’s agents in charge of said engine were under no duty to-notify him of their approach unless they saw him in' a place of imminent peril and about to be struck and injured. ’ ’ To the first of these instructions the court, over the objection of defendant, added a proviso to the effect that they should so find, “unless you farther believe from the evidence that when decedent was on the track and the train was approaching him, the agents of defendant in charge of the engine saw deceased in a place of imminent peril or could have seen deceased in a place of imminent peril, by the exercise of ordinary care on their part in time to have stopped the engine and avoided injuring deceased.” And the court added, over the objection of defendant, to the other instruction ’the proviso that they should find for defendant “unless they saw him (Walker) in a place of imminent peril and about to be struck and injured,, and unless by the exercise of ordinary care defendant’s agents in charge of said engine could have become-aware that deceased was in a position of imminent — 273 — peril in time to have stopped the engine and avoided injuring him.” We see no error in the addition of these provisos to these two instructions. In each of them the court submitted as one of the questions of fact whether the employees of defendant “saw” the decedent in a place of imminent peril. So- it did in the first instruction given at the instance of plaintiff. So plaintiff also alleged in her petition, although appellant asserts the contrary in its challenge of that petition. It is true that at the instance of defendant, appellant here, the court gave an instruction, the first sentence of which reads: “The court instructs the jury that plaintiff admits in this ease that the decedent was not seen on the track in front of the engine by the defendant’s agents and servants in charge of said engine.” This so-called admission, as we understand, is supposed to be drawn entirely from the opening statement of the case by one of the counsel for plaintiff. We do not find any admission as broad as this in the opening statement of counsel, nor do we find it anywhere in the abstract. We cannot agree to the claim of counsel for appellant, that there was no evidence that those in charge of the engine actually saw decedent on the track and in front of the engine as it moved along the track. We do find there was substantial evidence from which the jury might find that those in charge of the engine did see Walker on the track and in a place of danger and apparently unconscious of danger, when he was more than “a block” in front of the tender and walking east on the track. He was seen by a witness to be walking east along the center of track No. 3, when he (Walker) was about “a block” in front of the tender, the engine then moving east, and this witness says the engineer was looking that way. Decedent walked about a block while the engine was covering two — 274 — blocks and following Mm. Coupled with this is the engineer’s testimony that the engine ran eleven or twelve car-lengths (the length of a car being used as forty feet) from the time it started to move until the engineer was told of the accident, and there is testimony that Walker’s body was first seen about twenty feet behind the rear of the caboose, after the engine stopped. As the “train” consisted of only the tender, ■engine and caboose, a jury would be warranted in finding that Walker was more than one hundred and sixty-five feet from the tender when the latter started, .and thus in view, and, furthermore, there is evidence that Walker could have been seen when as close as thirty-five feet from the tender. So even if a man on the track had to be one hundred and sixty-five feet in front of the tender before the engineer could see him, the jury could find that Walker was in view of the ■engineer, who, according to the evidence, was looking east down the track directly toward decedent. The law here applicable to this phase of the case Is well stated in Lynch v. Chicago & Alton R. R. Co., 208 Mo. 1, l. c. 23, 106 S W. 68, thus: “It is. also in evidence that when this engine returned east following the deceased, it was running backward with the tender in front and it was not only their (those in charge of the engine) duty under such ■circumstances to keep a lookout, but the evidence shows that only a very few minutes before they struck Mm they were actually looking ahead. From the time they turned the curve east of the coal chute until they struck him, the track was straight and unobstructed and the day was clear and bright and there was absolutely nothing to keep them from seeing an object as large as .a velocipede with a man upon it. Even if they had testified that under these circumstances they did not see Lynch, the jury were not bound to accept their statement as true. [Payne v. Railroad, 136 Mo. l. c. 575.] — 275 — As said in the Riñe case (100 Mo. 228, l. c. 235), knowledge, like_ actual notice, may he proved hy direct evidence or it may he inferred from facts and circumstances ; when it is inferred from the facts and circumstances it is as actually knowledge as when proved by direct evidence; an opportunity to know will under some circumstances go far to show knowledge, and under other circumstances it may be of little value.” Here, as in the Lynch case, the track was straight, the day clear, and the engineer was apparently looking ahead. Under the evidence in this case, this quoted clause of this instruction, asked by appellant, should not have been given. Not only is it contrary to substantial evidence but it is inconsistent with others given, as noted. Where instructions are inconsistent and conflicting, we are to determine which is erroneous, and where the error is in that given at the instance of appellant, it cannot complain. [Thompson v. Moon Buggy Co., 155 Mo. App. 597, l. c. 609, and cases there cited; 131 S. W. 1088.] Other points are made by the very learned and industrious counsel for appellant which we do not think necessary to discuss in the view we have taken of the real issue in the case. On the evidence this was a case for the jury. Their verdict is supported by substantial evidence. We see no material error in the instructions given at the instance of the respondent. Our conclusion upon consideration of the whole •case is that there is no reversible error present and that the- judgment of the circuit court should be and it is affirmed. Nortoni and Allen, JJ., concur.