194 Mo. App. 250 | Mo. Ct. App. | 1916
Lead Opinion
Plaintiff sued and recovered for the death of her husband by being run over and killed by defendants’ freight train while backing over a trestle southwest of the station of Delta. The train in ques
No one saw the accident, as deceased’s body was found a corpse on the trestle some hours after this, train had gone northward to Cape Girardeau. The trainmen deny any knowledge whatever of a man being killed till the same was reported to them after their arrival at such destination.
The deceased was killéd about 7:00 or 7:30 o ’clock in the afternoon of June 23, 1914, and in broad daylight. The track is straight from this trestle, and beyond, to the depot to the north and beyond. The depot is at the crossing at right angles of defendants’ railroad and the Iron Mountain Railroad. The Cotton Belt Railroad parallels the Frisco and crosses the Iron Mountain a short distance to the east. Between these railroads and south of the depot is a camping ground, at and near which deceased was last seen alive. He went to this camp with his father and a number of friends who were to stay there during the night. According to plaintiff’s evidence, the deceased shortly left this camp, going to the railroad and then south toward the trestle along the east side of the train while it was standing on the track opposite the camp, intending to cross over the trestle and visit a friend who lived somewhere beyond. This was the last time his father and friends at the camp saw him alive and his body was found some two hours later, badly mangled, on and near the south end of the trestle. The exact
The plaintiff’s theory is that the deceased, after going out of sight of his friends at the camp (being seen by them till he passed behind some cars standing on a connecting track between the defendant Frisco and the Gotton Belt roads and then going south along the side of defendants’ train) continued south past the caboose and thence onto the trestle; that defendants’ train then backed up without warning and with no one at the caboose on the lookout and that it caught deceased on the trestle when he was three-fourths of the way across. The conductor’s version of the matter is .that the train stopped with the engine at the depot and the caboose near the trestle; that it stayed there only a minute or two unloading a little freight; that he started at once to leave the caboose to go forward to the depot but had gotten not over a car length when the engineer whistled the backing up signal; that he ran back to the caboose step, gave the engineer the response signal to back up and then rode on this step to the beginning of the trestle and then stepped off after looking across the trestle and seeing that it was clear;
There is much evidence in plaintiff’s favor on this point. A stockman remained in the caboose and testified strongly that the conductor and brakeman both left as soon as the train stopped and considerably before it backed up and that no trainman was in or about the caboose thereafter until the' caboose passed the depot as it was leaving that station. He admits, of course, the possibility of the conductor standing beside the car or getting on the lower step without his having seen him. The deceased went down along the train on the same side that the conductor says he was on and the conductor did not see him pass the caboose, nor meet him further up. The conductor says that if deceased had passed beyond the caboose he would have seen him on the track or trestle, as the view was plain and open. The distance from where the deceased was last seen at the side of the train to the caboose or beyond was too great to be covered by deceased in the short time indicated by the conductor before it backed up. Other witnesses, including one of defendants ’ witnesses, said the train did considerable switching before it backed up and one of plaintiff’s witnesses says he ate a lunch during this interval. Another witness testified
That deceased was killed by the train in question admits of little doubt and is practically conceded. When found deceaed was lying on his back east of the east rail and between it and the string of timbers fastened to the ends of the, ties, known as the guardrail. This was a space of about sixteen inches. His right shoulder was against the rail, his right arm cnt off at the shoulder and again at the wrist, and these parts were three or four feet from the body. A deep wound or hole was cut in the back of the head and other bruises were about the head and shoulders. N-other train had passed over this trestle from the time this one had backed thereon till the body was found.
The defendant insists that it was entitled to a clear track at this point and that it owed 'deceased no duty
The defendants’ main insistence is _ that there is no proof whatever that the deceased was, at the time and place of his death, in a position of peril such that
Under these facts, it is apparent that it would make little difference so far as defendants’ duty to him is concerned whether deceased was drunk or sober, walking upright or with weaving tread, or, as is probable, was sitting or lying down in a drunken stupor. [Murphy v. Railroad, 228 Mo. 56, 82, 128 S. W. 481; Bunyan v. Railroad, 127 Mo. 12, 29 S. W. 842; Riggs v. Railroad, 120 Mo. App. 335, 96 S. W. 707; Werner v. Railway, 81 Mo. 368.] As said iu the Murphy case.
The plaintiff’s principal instruction, the only one given as to the amount of damages recoverable, merely states that if the jury found the facts warranting ? recovery, to “find a verdict for plaintiff in a sum not less than $2000 nor more than $10,000.” The court refused to instruct on defendants’ behalf “If you find the issues for plaintiff, you cannot assess her damages at more than the sum of $2000.” The evidence showed that deceased was twenty-seven years of age, in good health, a farmer, and leaving a wife, plaintiff, and three children. These facts warranted a recovery for the amount of the verdict, $5000. Had either party desired a more specific instruction as to what should, be taken into consideration in determining the amount of the verdict, such as we held to be proper in the case of Foster v. West, 184 S. W. 165 (not yet officially reported), the same should have been requested. That case and others there cited are authority for refusing the instruction asked by defendants.
Finding no material error in -the trial of this case, the judgment is affirmed.
Rehearing
ON MOTION FOR REHEARING.
Since the filing of a motion for rehearing by the appellants I have become convinced that the judgment in this case should not be affirmed, and that the opinion heretofore rendered is in conflict with decisions of the Supreme Court and the St. Louis 'and Kansas City Courts of Appeals.
That opinion, contains a statement which I do not think the record will bear out, which statement is as follows: “According to plaintiff’s evidence, the deceased shortly left this camp, going to the railroad and then south toward the trestle along the east side of
That portion of the above excerpt from the statement of facts which I have italicized is the part that I think is not warranted by the record. The only evidence in the record bearing on the question as to where Starks was going is found in the testimony of James Willis, as follows: “When he left the camp the train was standing on the track and something like 100 feet from where the camp was. When he got to the train he went down the railroad track by the train. He told me that morning that he was going to a neighbor’s that lived on the railroad down there, he said he was going to go down there to see them and that he had met them somewhere and he was going back to see them, and I supposed that that was where he was where he was going. - When he left us I never noticed him very far down the track, and never paid any attention to his reeling. I saw him going down the -side of the track, and he walked off twenty or thirty steps down there and I never paid any more attention to him. He was going down by the side of the train. The next time I saw him was on the stretcher at the depot.”
The evidence of all the witnesses shows that Starks left the camp where he had assisted his father in unhitching the team and started toward the defendants’ railroad track, and that when he reached the' track he started down toward the rear of the train and was seen to walk for only a short distance in that direction by ■ any of the witnesses, other cars obstructing the view. We next hear of him through plaintiff’s witness who swore that while the caboose of the freight train was standing some 300 feet north and east of the trestle he saw a young man answering the description of Starks sitting on the railroad ties with his arm and head resting on the rail at a point about two rail lengths back of the standing caboose. This witness aroused him, called attention to the danger, and got him off the track and down the railroad embankment and left him. The witness says that the man then started
Under the evidence it is clearly and reasonably inferable that Starks started down the side of defendants’ track toward the caboose; 'that the man sitting or lying on the track about two rail lengths from the standing caboose was Starks; that he was killed by a collision with a railroad train on the trestle; and that it was the freight train along which he had walked, between six and seven o ’clock in the evening, that struck and killed him. All the witnesses for plaintiff agree that defendants’ train stopped for some little time, switching and backing the cars at this station, and that it had pulled in and stopped for some time before Starks was seen leaving the camp and going toward the train. He was never seen by any witness walking on the railroad track. After he was aroused and gotten off the track by the witness who found him there, he was never seen going toward the trestle by any of the witnesses. He may have walked out on the trestle before the train backed, but there is not a scintilla of evidence in the record that he did so other than that his body was found on the trestle several hours afterward. He may have caught the train as it was backing and attempted to ride and thus reached the point on the trestle where his body was found, but there is no testimony in the record to sustain this conjecture. To make my position clear, it is purely conjectural under this record to say that Starks walked on the trestle to the point where his dead body was found or to say that he rode there.
The whole theory of the plaintiff’s case is that there should be a recovery on the humanitarian doctrine. Plaintiff has shown with, reasonable certainty that it was the defendants’ freight train which was standing at Delta between six and seven o’clock in the evening that struck and killed Starks. This, how
PER CURIAM. — An order having this day been entered overruling appellants’ motion for a rehearing, pursuant to the request of Farrington, J., in-a separate opinion filed, wherein he deems the controlling opinion in conflict with certain enumerated decisions of the Supreme Court and St. Louis and Kansas City, Courts of Appeals, this cause is certified to the Supreme Court .'or final determination under the provisions of section 6 of the Amendment of 1884 to article VI of the Constitution.