185 Mo. 212 | Mo. | 1904
This is an action, under the statute, for five thousand dollars damages, caused by the killing of the plaintiff’s husband, by a regular passenger train, at a point in Kansas City, where the defendant’s tracks cross Lydia avenue, about nine o’clock, a. m., on August 26, 1899. The plaintiff recovered a judgment for five thousand dollars, and the defendant appealed.
The petition charges three acts of negligence on the part of the defendant, to-wit: first, a violation of the railroad speed ordinance of the city, which made a greater rate of speed than six miles an hour a misdemeanor, punishable by a fine; and the acceptance thereof by the defendant in consideration of a grant by the city of a right to construct a switch track on Front street; second, common law negligence in running' the train, in a populous part of the city, “at a rate of speed which, under the surroundings and circumstances, was negligent and dangerous; ’ ’ and, third, so negligently, carelessly and unskülfuLly running the train as to run over the deceased after it knew or by the exercise of ordinary care could have known of the peril to which he was exposed, and in not stopping the train after it knew or could have so known of such peril in time to have avoided the injury.
There was no such speed ordinance or acceptance thereof attempted to be shown, nor was the case tried upon the theory of the plaintiff’s right to recover on
The answer admits that plaintiff was the wife of the deceased, and admits the killing, hut denies that the defendant was guilty of any negligence, alleges contributory negligence on the part of the deceased, and concludes with a general denial of all allegations of the petition that are not admitted to he true.
The facts developed upon the trial are these:
The railroad runs east and west and Lydia avenue-runs north and south. For a distance of six hundred feet west of Lydia avenue the track is straight and level and there is nothing to obstruct the view. The deceased was a section hand in the employ of the defendant, was forty-three years of age, and possessed of alibis faculties and had been working as a section hand for about four months. About seven o’clock of the morning of the accident, the deceased went to the place of the accident, on a hand car, with the section gang, to repair the track. They unloaded théir picks and shovels and tools and a water keg from the hand car onto the ground south of the track and just west of Lydia avenue. There was a telegraph pole about six feet south of the track, and they placed the water keg just west of the telegraph pole, and left some picks, shovels and tools lying on the ground between the telegraph pole and the track. They then went to work repairing the track just east of Lydia avenue. The east-hound passenger train was due to pass that point about nine o’clock. About that time the deceased left the place at which he was working and went across Lydia avenue and to the water keg to get a drink of water. .In so doing his face was.turned towards the west in the direction from which the train was to come. He reached the water keg, got a drink of water, put the top on the keg and placed the cup on the top of the lid. The train was composed of an engine, a mail car, a baggage car and two coaches, and was- equipped with
The plaintiff called three witnesses who saw the accident, to-wit, James W. Havens, Mack McConnell and Vaughan. The first, Havens, was one hundred and fifty feet east of the place of the accident. The second, McConnell, was on top of a hill, south and east of Lydia avenue, and was two hundred and fifty feet distant from the place of the accident. The third, Vaughan, was standing at a window of the Grille Hardware Company, at First and Lydia avenues, which was from two hundred and fifty to three hundred feet from the place of accident. They all say that aftér the deceased had taken a drink of water he staggered or stumbled and his feet seemed to get “tangled” up with the tools and he was trying to move and could not.
Havens says that when the deceased got so “tangled up” with the tools, the train was from two hundred to six hundred feet from him (he stated both distances at different times in the course of his examination). Later, on being recalled for further cross-examination, this witness identified a written statement he had made just after the accident in which he testified as follows:
‘ ‘ All I know about it is that I used to work at that furniture factory at First and Lydia, and had been laid off for want of material to work with, and had been down to Sheffield, Missouri, and was returning up the track, and the train was coming out, and I seen it strike the man. I was about 150 or 200 feet east of Lydia avenue where I saw the man struck. He was west of the crossing when he was struck.
‘‘ Q. Where was this man when you first saw him? A. He was just straightening up from the water keg that was there, and seemed as though he got his feet tangled up in some of the 'shovels that were laying there; then he went to turn around from the keg, he
‘ ‘ Q. Did he throw up his hands when he went to fall? A. Not that I noticed; he pitched forward toward the train.
“Q. When you first saw him there at the water keg was he facing the train? A. Yes, sir.”
McConnell says the-train was three hundred feet from the deceased when he became so tangled with the tools. And Yaughan placed the distance at two hundred and fifty feet. They all say that deceased was then five or six feet south of the track, was struggling to free Ms feet and could not, and that as the pilot of the engine came opposite to him he “pitched” or fell sideways against it, and was carried on the pilot about fifty feet and thrown off, and was injured so that he died.
The defendant called four eyewitnesses to the accident, to-wit, Patrick Conner, the engineer, Frank Farrell, the fireman of the engine, Patrick Naughton, the flagman at the Lydia avenue crossing, and Morris Sullivan, a section hand who was working on the repair of the track with the deceased. Conner testified that he was on the right-hand side of his engine, and saw the deceased when he was about three hundred feet from him; that he was then in the act of taking a drink of water from the keg, and was facing the train; that he was then about six or seven feet from the track; that when the train got within ten or fifteen feet of him, he began to stagger back towards the train; that he immediately began to blow the whistle and to set the air-brakes and did all he could to stop the train, but that he fell against the pilot on the front of the engine and was killed; that he had before that whistled for the Belt Line crossing, and had whistled for the dirt road crossing at the Bolen Coal Yard, which was six hun
Patrick Naughton, the flagman, was at the Lydia avenue crossing. He corroborated the engineer as to the whistles. He says he noticed the section hands at, the Lydia avenue crossing, and saw one man at the water keg; that the latter started to turn around and stumbled and threw up his hands and fell against the pilot beam on the engine; that he could not tell exactly how close the engine was to the deceased when he commenced to turn around from the water keg, but it was not further than across the court room; that when the train was at the Bolen Coal Yards six hundred feet away, he signalled for it to come oh, and then took eleven steps, and then he heard a whistle, and he looked and saw the deceased stumbling as aforesaid.
Frahk Farrell, the fireman, said he was on the left-hand side of the engine. He corroborated the
Morris Sullivan, a section hand, was at the hand car about ninety feet east of the Lydia avenue crossing, and six or eight feet north of the track. Pie said that deceased had taken a drink of water and started east towards the hand car to help load it with cross-ties; that he heard a “warning whistle,” and looked around and saw that the engine was within ten or fifteen feet of the deceased; that deceased was about ten feet east of the water keg and seemed to he standing still; that the engine then came between him and deceased and he did not see what happened afterwards; that there were “a few tools — picks and shovels around there.”
On behalf of the plaintiff, Havens testified that in his judgment the train was running at the rate of eighteen to twenty miles an hour. Pie had no experience in such matters except riding on a train. He testified that he did not hear any whistle, but that his attention was directed towards the train by the remark of some one that the train was coming.
McConnell, a witness for the plaintiff, testified that he had worked on railroads off and on for twelve or fifteen years, and that in his opinion the train was running from eighteen to twenty miles an hour.
Vaughan, a witness for plaintiff, testified that he could not approximate how fast a train is running.
Frank A. Stamples, a witness for the plaintiff,
William J. Mathis, a witness for the plaintiff, testified that he was a stationary engineer, had been a locomotive engineer and a fireman, and had worked on a locomotive engine, other than as' an engineer, for nine or ten years, had had no experience as an engineer on passenger trains, bnt had ‘ ‘fired” on passenger trains “considerably.” He said a train of the character of this train when running at eighteen miles an hour, could be safely stopped “in the length of itself,” which he said was two hundred and fifty feet, and if it was running at the rate of six or seven miles an hour it could be stopped in forty or fifty feet.
John W. Balbridge, a witness for the defendant, testified that he was a locomotive engineer and that he had been running a passenger train for twenty-seven years; that a train like this one when running at the rate of eighteen miles an hour, could be stopped in from fiye hundred and forty to six hundred feet, and that when running at a speed of six or eight miles an hour it can he stopped in one hundred and forty feet.
Peter Helm, a witness for the defendant, testified that he was a locomotive engineer and had been running an engine on the defendant’s road for nineteen years. He said that a tráin like this when running six or eight miles an hour, could be stopped in about one hundred and fifty to two hundred feet, and if running at eighteen miles an hour it could be stopped in between four and five hundred feet.
At the close of the plaintiff’s case and again at the close of the whole case, the defendant demurred to the evidence, the court overruled the. demurrers and the defendant excepted. The case was submitted to the
I.
The chief error assigned is the refusal of the trial court to direct a verdict for the defendant.
Two acts of negligence are assigned by the plaintiff as ground for a recovery: first, common-law negligence in running the train at a dangerous rate of speed “under the surroundings and circumstances,” and, second, “negligently, carelessly and unskillfully” failing to stop the *train in time to avoid the injury, after the defendant knew, or by the exercise of ordinary care could have known, of the peril of the deceased.
Of the first assignment of negligence it is only necessary to say: first, that “the surroundings and circumstances” were not such as to make a rate of speed of eighteen or twenty miles an hour negligence in itself, in respect to the duty of the defendant to its section hands engaged in the business of repairing the track. Second, there is no substantial evidence in the case that the train was running eighteen or twenty miles an hour, and the physical' facts show this could not have been true. On behalf of the plaintiff there were only two witnesses who testified that the train was running eighteen or twenty miles an hour, and both of these were from two hundred and fifty to three hundred feet east of the place of accident and the train was approaching them. Havens did not qualify himself to give an opinion on the subject, and had had no experience with trains except to ride on théín, and McConnell was a common laborer, and only attempted to qualify himself to express an opinion by saying he had “been on the road, off and on, for I would think twelve or fifteen years,” although in what capacity he did
The second act of negligence assigned is the vital question in this ease.
The necessary, underlying postulate as to this charge is, that the deceased was in a place of peril, and the next ingredient necessary to a recovery is that the defendant knew or by the exercise of ordinary care could have known that he was in peril, in time to have stopped the train and avoided the injury.
There is no controversy in the case that the deceased was a section hand in the employ of the defendant, nor that when the train was from two hundred to six hundred feet from him he was standing at the water keg, at. a distance of at least six feet south of the track. There can be no doubt in the mind of any one that while in that position he was not in a place of peril. The trainmen, therefore, had a right to assume that he would remain in that safe position and would not do anything towards thereafter placing himself in a position of danger and hence were not required to stop the train or check the speed. [Sharp v. Railroad, 161 Mo. 214; Buyer v. Railroad, 174 Mo. 344; Zumault v. Railroads, 175 Mo. 288; Carrier v. Railroad, 175 Mo. 470; Evans v. Railroad, 178 Mo. 508.]
In Evans v. Railroad, supra, Burgess, J., speaking for the court, said:
“But plaintiff claims that even if deceased was guilty of negligence, yet if defendant’s employees in
Giving the fullest possible effect to the testimony of the plaintiff’s witnesses, the result is that the deceased was in a place of safety; that after taking a drink of water he started to turn around, and his feet seemed to become “tangled up” with some tools that were lying on the ground and that he staggered backwards and just as the pilot of the engine got opposite to him he “pitched over sideways” and fell against the pilot. Assuming as plaintiff’s witnesses say that the
The physics of the case also show this to be true. For it certainly would not take six and two-thirds or twenty seconds for a man to fall down after he commenced to “pitch sideways.”
This is all upon the theory that the testimony of the plaintiff’s witnesses is absolutely true. They were from two hundred to three hundred feet away from the place of the accident, and were mere casual observers. The testimony of the engineer and of the flagman is that the deceased was not in a place of peril and did not commence to stagger towards the train until the engine was within from ten to thirty feet of him, and then the engineer sounded the warning whistle, applied the air-brakes and stopped the train in about one hundred and twenty to one hundred and thirty-five feet — which fact tends to show that it must have been running at a less rate of speed than eighteen or twenty miles an hour, for if it was running at that rate, a stop made in about four seconds would be hazardous to the safety of the passengers on the train.
Upon the case made, therefore, it is apparent that the humanitarian doctrine has no application. There is no evidence or charge of any wantonness on the part of the trainmen, and nothing from which an inference of intentional suicide on the part of the deceased can be drawn. It was, therefore, an unforeseen accident, which could not have been anticipated or avoided. There was no negligence on the part of the defendant shown, and hence the defendant is not liable. The trial court should have directed a verdict for the defendant. The judgment is, therefore, reversed, and as no good could come of a trial anew, the cause is not remanded.