221 Mo. 644 | Mo. | 1909
The plaintiff, the widow of Charles M. Swearingen, deceased, brought this suit in the circuit court of Jackson county, at Kansas City, Missouri, against the defendant railway company and the defendants Crumrine and Drennen, the locomotive engineer and conductor, respectively of said company, for 'five thousand dollars damages, for the death of her husband, which occurred May 5, 1902.
The petition in this cause, among other things, alleges “that one of defendant Wabash Railroad Company’s lines of railroad extends from Kansas City, Jackson county, Missouri, in an easterly direction to St. Louis, Missouri, by “way of a point known on said line as Fleming, at which point the defendant Wabash Railroad Company’s road is operated and run under the track of the Atchison, Topeka and Santa Fe Railway Company, which said track is supported by a bridge or trestle-work over the road and tracks of defendant, the Wabash Railroad Company. That de
The answer of the defendants was a general denial.
Upon the trial the defendants objected to the introduction of evidence as to the defendant Drennen on the ground that the petition did not state a cause of action as to this defendant, which objection was sustained.
The facts of the case upon the record are, that on the 5th day of May, 1902, Charles M. Swearingen, the husband of plaintiff, was, and for a period of five years prior thereto had been, an employee of the defendant as a brakeman on freight trains running between Moberly and Kansas City, Missouri. On that day he was on a through freight which left Kansas City at 5:30 o ’clock p. m. for Moberly. This train left Harlem, Missouri, just across the Missouri river from Kansas City, Missouri, an hour and five minutes late, and just before reaching Orriek, a station about thirty miles east of Kansas City, a hot box was discovered by Mr. Swearingen on the rear truck of a Rock Island freight car, located about the middle of the train consisting of nineteen loaded cars, and Mr. Swearingen reported it to the conductor, Crumrine. This hot box was on the front journal of the rear truck
Witness Gear testified that the morning following the accident he made an examination of the iron post at the end of the bridge; that he found a dent on it about six feet' from the ground; this dent was twelve or fourteen inches long and about two inches wide. Conductor Crumrine testified that he made an examination of this post, but found no mark or dent of any kind on it. The distance between the iron post and the outer edge of a box car is estimated by the witnesses testifying upon this point, to be from twenty to twenty-four inches.
The Atchison, Topeka & Santa Fe Railroad crosses the Wabash Railroad at this point overhead and this bridge was constructed by the Atchison, Topeka & Santa Fe Railroad Company sometime after the Wabash Railroad Company had built and occupied its
The only evidence in the record of the character of car and as to whether there was any ladder on same was that given by witness introduced by plaintiff, Mr. Crumrine, the conductor of the train referred to, as follows:
“Q. Do you know what character this (car) was, whether it was an ordinary box car, that the hot box was under? A. Why, I think it was just an ordinary box car, I am pretty positive of it really.
“Q. Did it have ladders on the side? A. Well, now I couldn’t say that, but most of them Rock Island box cars has no ladder on the side, they have their ladders on the end, this was a Rock Island box car.
“Q. Well, do you know whether this is a Rock Island box car? A. Yes, sir.
On cross-examination this witness further said on this point:
“Q. You spoke about the character of car. You say it was a Rock Island? A. Yes, sir.
“Q. Now, you say you are not sure whether there was a ladder on the side or on the end? A. No, sir; I am not sure of that.
“Q. The Rock Island cars generally don’t have any ladder on the side? A. No.
“Q. They do have on the end of the car? A.. They have it on the end of the car, and very few of them over on the side.”
This witness further testified on the part of the plaintiff that there was room between the posts and the box car for a man the size of plaintiff to pass safely on a ladder on the side of the car, but that he would have to get pretty close to the car. Witness Crumrine also testified that he did not order the deceased to get on the side of the car, but simply that he should watch the hot box, and that in order to watch it, it was not necessary for him to get on the side of the car, but that he could have performed this duty from the top of the train without leaning over the side.
This substantially indicates the nature and character of the testimony upon which appellant relied in the trial court for a recovery, with the exception of a deposition offered in evidence of a witness by the name of B. B. Morris. His testimony was in the nature of expert testimony. He was not at work on the train when this accident occurred, nor had he been iworking on this line of road for some time previous. There is a dispute between counsel as to what portion of this deposition was admitted in evidence. The appellant embraced the entire deposition in her ab
At the close of the plaintiff’s evidence, at the request of the defendants, the court instructed the jury that under the pleadings and evidence their verdict must be for the defendants, and the jury returned their verdict in accordance with such instructions.
Timely motions for new trial and in arrest of judgment were filed and by the court overruled. From the judgment and decree entered in this cause the plaintiff appeals, and the record is now before us for review.
The record in this cause discloses but one legal proposition, that is embraced in the assignment of error that the court, at the close of the evidence on the part of the plaintiff, erroneously declined to submit the cause to the jury, and gave a peremptory instruction to the jury to find the issues for the defendant.
We have indicated in the statement of this cause the allegation in the petition, in which is embraced the charge of the specific negligence relied upon by the plaintiff for a recovery in this cause. We have also set out substantially the testimony offered by the plaintiff to support the allegation of negligence in the petition. We have carefully read in detail all of the disclosures of the record, and while it must be conceded by every one that this was an unfortunate accident, yet it must not be overlooked that this is simply a lawsuit in which it is charged that plaintiff’s husband lost his life through specific acts of negligence alleged in the petition, and in order to warrant a recovery there must be at least some substantial testimony tending to establish such acts of negligence which resulted in the death of her husband.
After a most careful consideration of all the evidence, we see no escape from the conclusion that there is an entire absence of any substantial evidence showing how the deceased met his death.
The petition alleges that at a point on defendant’s line of railroad known as Fleming, the defendant railway company is operated and run under the track of the Atchison, Topeka & Santa Fe Railway Company, which said track is supported by a bridge or trestle-work over the road and tracks of defendant, the Wabash Railroad Company. That defendant, the Wabash Railroad Company, had prior to the
We repeat, that the testimony absolutely fails to support the allegations of negligence as charged in the petition. It is assumed by the appellant that her husband was knocked off of a freight car by striking an iron post on the side of the track while he was standing on a ladder on the side of the car examining a hot
There was no evidence introduced that plaintiff’s husband went down on any ladder to examine a hot box. The testimony clearly shows that the deceased was upon the engine, and there is no evidence by any witness that Mr. Swearingen was seen after he left the engine. In order to reach the car which was affected by the heated box the plaintiff’s husband would have had to walk over about ten cars before reaching this particular car. No one saw him, and in fact the record is absolutely silent as to when or how he fell off this train.
Upon the trial plaintiff offered no evidence tending to establish the allegation that her husband had been directed by the conductor or the engineer to go down on the ladder and examine the heated box while the train was in motion. The only testimony introduced upon that subject was by the conductor and the engineer, who both testified positively that they did not so direct him. The engineer also testified that when plaintiff’s husband suggested that he would go back and look at the box he told him not to go, say
It is also assumed by the appellant that while standing on the ladder on the side of the car the deceased struck the post of the Santa Fe bridge and was thereby killed. A careful examination of the evidence disclosed by the record shows that there was no substantial evidence to prove this fact. The conductor testifies that he made an examination to see if he could find any marks of any kind on this post, and he states positively that he could find none. George Gear, a witness for the plaintiff, did testify that there was a dent on the iron post six or seven feet' from- the ground; that this dent was twelve or fourteen inches long and about two inches wide. This was an iron post and we are of the opinion that it would be indulging a very violent presumption to believe that this character of dent on this iron post was made by one’s head striking against it. Plaintiff also introduced the cap worn by deceased at the time of his death, which, it is claimed, shows a dent on its visor. The-cap was attached to and made a part of the record and is now before us. An examination of this cap shows that its forepiece which projects down over the eyes is stiffened by some sort of card board, and the only indication we find on the cap is a slight loosening of this card board upon a small portion of its front piece. There is no breaking of the cloth covering the card board,
No one can read the disclosures of the evidence in the record and reach any satisfactory conclusion as to how this accident occurred. There is nothing to show how deceased fell from this train, nor on what part of the train he was at the time he fell. As is suggested by learned counsel for respondent, in order to reach the car which was affected by the hot box he had to walk over nearly ten cars, and in doing that he may have slipped or stumbled while walking on a car and struck his head on the car and fell off. But this, also, is mere conjecture and speculation, but equally as tenable as the conjecture that he was down on the ladder and struck this particular iron post.' There is no substantial evidence to support the theory of the plaintiff in this case.
Manifestly plaintiff’s case rests upon mere presumption. In fact it is sought to recover in this action by building one presumption upon another.
In Yarnell v. Railroad, 113 Mo. l. c. 580, it was clearly stated by this court that it was not allowable to
In State v. Lackland, 136 Mo. 26, the authorities upon the subject of presumptive evidence and building one presumption upon another, were thoroughly and exhaustively reviewed by this court, and after such review the rule as announced in the last case cited was strictly adhered to, and it was expressly held that “a presumption of any fact is, properly, an inference of that fact from other facts that are known,” and that presumptions in order to be available in the proof of a cause of action must rest on established facts, and not upon other presumptions; citing Richmond v. Aiken, 25 Vt. 324; Pennington’s Ex’rs v. Yell, 11 Ark. 212; O’Gara v. Eisenlohr, 38 N. Y. 296; Railroad v. Henrice, 92 Pa. St. 431; Yarnell v. Railroad, 113 Mo. 570.
The cause of action, as alleged in the petition, charges specifically the acts of negligence and the-manner in which this accident occurred. As we have heretofore stated, there is no proof that it occurred in the manner as charged in the petition, and manifestly it was not known how this accident occurred, and if we were to indulge in conjecture and speculation, one can account for it upon some other theory equally as prob
Our attention is directed to the case of Murphy v. Wabash Ry. Co., 115 Mo. 111. It is this case upon which the plaintiff chiefly relies; but a careful examination of that case will demonstrate that the facts as developed upon the trial were essentially different from the proof in the case at bar. In that case it will be noted that there was substantial proof as to how the accident occurred. In this case it is a mere speculation or conjecture as to how it occurred. This is a sufficient distinguishing of the two cases to show that the Murphy case furnishes no support to the case at bar. But aside from that there is another material difference in the two cases. In the Murphy case the injury resulted from the negligence of the defendant in erecting and maintaining a fence on its right of way so close to its track as to imperil the lives and limbs of its servants engaged in operating trains; by reason of this fact the engineer operating the train, while tightening some of the nuts on the outside of his engine, was injured by coming in contact with this fence. There was as to these facts substantial proof offered. It was not a mere conjecture or speculation as to how this engineer received his injuries, but the facts were shown in evidence tending to prove the allegation in the petition. The court, in its final conclusion, in discussing the question as to assumption of risks, said: “It is clear that the plaintiff did not assume any risk arising from the fact that this fence was too close to the track, unless he knew the fence was close enough to the track to strike his body, and we have seen that this court cannot say that he'had such knowledge.”
In the case at bar the record discloses that plaintiff’s husband had been an employee of the defendant
In arriving at the conclusions in this case we are not unmindful of the authorities cited by appellant. While we have not reviewed those authorities it by no means follows that we have not carefully examined them. In our opinion they in no way conflict with the conclusions as reached by this court as herein indicated.
We see no necessity for pursuing this subject further. Our views upon the legal proposition disclosed by the record are fully indicated, which results in the conclusion that the action of the trial court in giving the instruction requested in the nature of a demurrer to the evidence was entirely proper, and the judgment of the trial court should be affirmed, and it is so ordered.