100 Mo. 673 | Mo. | 1890
This is an action by the widow of William Soeder for damages for the death of her husband, alleged to have been caused by the negligence of the defendant, in whose employ the said Soeder was, at the time of his death, engaged in the discharge of his duties as a brakeman.
Three grounds of recovery are stated in the petition: First. That the accident was caused by the failure of defendant to have a sufficient number of men to manage and control the train; second, by reason of a defective
The first ground was practically abandoned on the trial; upon the second no evidence was introduced, and the case was tried, submitted and turned upon the third alleged ground of negligence. The plaintiff recovered judgment for thirty-five hundred dollars. On the trial, the defendant demurred to plaintiff’s evidence. The material evidence for the plaintiff bearing upon the issue submitted was, in substance, as follows: Mrs. Soeder, the plaintiff, testified: That she is the widow of William Soeder; that, at the time of his death, on the twenty-seventh of August, 1886, he was twenty-nine years and six months old; that he was a brakeman in the employ of defendant, for whom he had been working in the yard since the fourth of July preceding his death; that he was a sober and industrious man, receiving as wages about seventy dollars per month; and, in answer to the question how many children she had, said : “I have one by him; I have two little ones. I have been twice married.” She further testified that her husband had worked about three years as fireman and brakeman for the Missouri Pacific Railway Company before he worked for the defendant.
C. W. Sergeant testified: That the track upon which the accident happened was an Iron Mountain track; that from Stein street as one goes down towards the river the grade is very steep; that they were “hauling” Vandalia, Ohio & Mississippi and Chicago & Alton cars that night, all of which were heavily loaded; they were transfer cars that had been taken out of the yard loaded with ore; that they only took half the cars at a time; shoved them on the switch track and left them northeast of the Stein street crossing, and went back to get the other half; that witness stood at the crossing
Q. “ Who had to do that?” A. “Soeder.”
Q. “After he signalled and the car moved, what did he do?” A. “He signalled back until I went in and made the coupling; after I made the coupling I gave the signal, all right, back up; I answered the signal to get on top.”
Q. “Is that a brakeman’s place?” A. “Yes, sir, especially shoving in on a track like that.”
Q. ‘Where did you get up ? ” A. “ Right at the Stein street crossing.”
Q. “How was the train moving?” A. “Well, you can’t judge; it is down grade in there. We just made the coupling, and after I got up on top, of course, they were not moving more than three or four miles per hour.”
After several questions were asked and answered as to the number of brakemen on the train, and the number that such a train ought to have, the examination bn the main question was resumed, thus :
Q. “When did you next see the deceased, William Soeder, after you saw him get up on top of the car?” A. “Not until the engine had come around the curve. The fireman came on the gangway and said: ‘I think your partner has fallen off and got hurt.’ ”
He then says, in substance, that he went down on the side of the train opposite to that on which Soeder was lying and called him by name, got no answer, and went around on the other side of the train and found .Soeder lying there, about fortyrfive,. fifty or fifty-five feet northeast of Stein street; that, from the appearances, Soeder must have been dragged from twenty to twenty-five feet; that the wheels passed over him above the hips;
On cross-examination this witness testified: “That Soeder’s body was found from forty to sixty feet from
The following question was asked witness in relation to the short rail:
Q. “Isn’t that a very common thing in a track, sidetrack in a yard, that kind of a rail; don’t you find that sort of a rail very frequently on a sidetrack in a yard?” A. “Not a rail battered down the way that was; I have seen rails battered down. Yes, sir.”
S. K. Harding testified in substance as follows: That he is a railroad man, having been engaged as switchman and brakeman for about sixteen years; that he knows the Iron Mountain “ear” track at Stein street; that he saw the rail of that track about thirty or forty feet north of Stein day before yesterday; that he went to look at it in company with Mr. Sergeant (the preceding witness) and a Mr. Donahue; that he saw the rail spoken of; it was a rail about fifteen or sixteen feet long; that the ball of the rail was worn off badly for about a distance of five or six feet from the joint, so as to give a fall of an inch or an inch and a half; that the west rail was. a good rail and was not worn off any; that the point where this rail was worn off is an inch or an
And on cross-examination he testified: That he saw this rail a day or so ago and had seen it last winter when he worked there; that a car going over said rail would make a jolt of an inch or an inch and a half; that a car going over such a rail at three or four miles an hour would give a jar; that witness, as a railroad man, had had many jars; that he does not know anything about the kind of cars that ran over the switch track the night of the accident; that he had never seen the track there before the accident, and doesn’t know anything about the condition of said track at the time of the accident.
This was all the evidence upon which plaintiff relied for a recovery. The defendant did not stand on its demurrer to the evidence, but introduced evidence to sustain the issues upon its part. This evidence, however, did not tend to strengthen the plaintiff ’ s case but was confined to showing that the defective rail complained of had been there for an indefinite period of time before the accident, had been in continual use since, and was then in use on the day of the trial, was not in the condition testified to by plaintiff’s witnesses, and was in a reasonably safe condition, at the time of the accident. And the question remained for the court to determine after all the evidence was in: Is there any evidence tending to show that the defective rail was the cause of Soeder’s death?
I. It satisfactorily appeared from the evidence that his death was the result of defendant’s train passing over his body; that by some means his body got beneath the wheels of the train at a point, on the track,
II. As to whether there was a substantial defect in the track occasioned by the defective rail or whether the deceased was familiar with this particular track were questions also for the jury, as different conclusions might be drawn from the evidence on these subjects. Conceding, however, that the deceased was perfectly familiar with this track and remained in defendant’s employment, this of itself would not, have been sufficient to defeat a recovery. The deceased’s knowledge of the unsafe condition of the track, if it was unsafe; would not defeat a recovery, if “it was not so dangerous as to
III. The judgment should not be reversed because the plaintiff was permitted to testify as to the number of her infant children; the husband was bound for the support of his own child, and his death cast this burden upon her {Tetherow v. Railroad, 98 Mo. 74), and there is nothing in the amount of the damages assessed, to suggest the idea that it may have been affected by the fact that she had another child by a former husband.
IY. Conceding that the evidence was sufficient to take the case to the jury, as we have found that it was, the issues were presented by an admirable series of instructions, covering the whole law of the case, and including every proposition contained in the defendant’s refused instruction, that could properly have been given Finding no reversible error in the record the judgment is affirmed.