159 Mo. App. 508 | Mo. Ct. App. | 1911
Plaintiffs deceased husband was an employee of the defendant; as a brakeman on a freight train. He was killed by one of defendant’s engines while out as a flagman, and plaintiff, charging his death to defendant’s negligence, brought this action and recovered judgment in the trial court.
Deceased and his crew had been ordered to as-' sist in clearing away a wreck at a station called Etlah. This had been about accomplished when the conductor, who was at the 'station with deceased, ordered him to go eastwardly down the track to flag an expected west-bound passenger train. He started to his post. Shortly after this a local east-bound freight train came in from the west and stopped at Etlah, at near two o’clock p. m., when it was concluded that there was time to run east about three miles to another small station and get in on a side track before the expected west-bound passenger train would get there; The train then started up for that short run at a rapid speed, stated to have been at the rate of thirty-five or forty miles per hour. The bluffs come close to the river and the railway track follows them, thereby making several curves. This local freight had not gone far in its eastwardly run until it came upon deceased sitting asleep on one of the rails of the track, with his head inclining forward on his breast, his legs inside the rails, and his flag across his arm, rolled up.
Immediately on seeing him the engineer shut off steam, set the air brakes and opened the sand boxes, and by the time he had done that the engine was upon deceased and he was injured so that he shortly died. The train came to a stop three hundred feet further on. No one saw .the accident but the en
Plaintiff also had a measurement taken, but without the aid of an engine, which was stated to be three hundred and twenty-five feet. But this is well accounted for by the engineer showing that a seat up ten or twelve feet in the cab of the engine, where he sat, would be more obstructed on account of the formation of tie bluff than would a view from the ground. In other words, that one could see further along the track from the ground than he could from the engine cab.
Then plaintiff relies upon another part of the evidence as tending to contradict the engineer on distances. To show that deceased was not so far down the track,' by several hundred feet, as the engineer placed him, a section foreman was introduced by plaintiff, who stated that at eight o’clock that morning (near six hours before the accident occurred), he had seen deceased flagging at a certain place, and that the next morning thereafter he saw a cap at the same place, close by the track, which he thought, indeed felt sure, was the one he saw deceased wearing the morning before. This place was located by the witness in such way as to be wholly unintelligible. He attempted • to make known where it was by a milepost, a mileboard, a whistling board, a whistling post, and a telegraph pole with the miles marked on it, and these he used interchangeably until, as best we can gather from reading it, the court-, counsel and the witness himself became confused with his tangling statements. The mileboard and the milepost
After the witness mixed matters past our comprehension, viewing them in print, the trial court suggested to him that he could not understand, and questions were then put to make things clearer. So it was asked Mm: “What is the distance between the milepost and the wMstling board?” At tMs point (to show-how he was understood), a lawyer broke in with the statement: “He says about seven hundred feet.” Another lawyer said: “That is' not what I understood Mm to say.” Yet another adds that: “He said five or six telegraph, posts.” And then the court stated: “I think he is confused.” Then tMs follows:
“Q. That is, it is a half mile between the wMstling post— A. And the wMstling board.'
“Q. That is, in other words, the west pole? A. Yes, sir.
“Q. And going on east, why the first you come to is the wMstling board? A. The wMstling board.
“Q. The wMstling board or wMstling post? A. The wMstling board, — the mileboard.
. By the Court: “That is what you call the mile-board? A. The mileboard; yes, sir.
“Q. Now, then, you come to that first? A. Going east you come to the milepost 70, first.
“Q. That is what I say, going east you come to milepost 70? A. Yes, sir.
“Q. And the next tMng you come' to is' the wMstling board. A. The mileboard; yes, sir.
“Q. The mileboard?”
At tMs pomt another lawyer, silent up to tMs part of the examination, stated what the witness meant. Then the witness was asked, “Now with reference to that (the mileboard) where did you find that cap? A. Well, about sometMng like, I tMnk, about five or six poles, or seven or sometMng like
But if we allow to this witness’s testimony the understanding placed upon it by. plaintiff’s counsel in argument, it is this: That deceased was seen on the track in the morning about six horns before the accident, engaged in flagging; and nearby this place the witness found a cap the next day which he thought was the one worn by deceased when he saw him the day before. How does that show, or reasonably tend to show, that deceased was not at another part of the track, a short distance away, at another time, where the definite testimony of the engineer placed him? It is an attempt by mere conjecture to overturn definite and positive testimony given by persons who had affirmative knowledge. We think none of it is inconsistent with the evidence plaintiff sought to combat.
Plaintiff, however, does not base her case alone upon the testimony of .the foregoing character. It is insisted that the engineer should have sounded the whistle immediately upon seeing deceased, instead of attempting to stop; and much speculation is indulged in as to there being time for deceased to be aroused from his sleep and to get off the track before being struck. Measurements, to the foot, and time, to the half second, are stated and many conjectures and possibilities as to what deceased might have done, are put forward to fasten guilt of negligence upon the engineer. The Supreme Court calls such character of evidence “the fog of conjecture” and not “a basis of fact.” [McGee v. Ry. Co., 214 Mo. 530.] It must be borne in mind that this is a case where the negligence of the deceased is conceded and where the only
As he, at rapid speed, rounded the curves following the formation of the adjoining bluffs, the engineer came in view of a man on the track, with his head down on his breast, only 275 feet away. What was he to do? If he had time for reflection at all, he might have thought it impossible to save him, but the instinct of humanity was alive and he instantly began to try to stop. His effort was of no avail and he did not get the train down to a stand until three hundred feet beyond the point of collision.
Now if we permit ourselves to conjecture and say, in plaintiff’s behalf, that if the engineer had sounded the whistle instead of attempting to stop, there is a possibility' that deceased may have been awakened, brought to a sense of his danger and got off the track in time, and that therefore the engineer made a mistake, it will not aid plaintiff’s case. The law is, above all things, reasonable, and it is formed in recognition of the frailty and fallibility of human judgment, and it refuses to make culpable negligence out of error of judgment in an emergency caused by the fault of the other party. There was a ease in this court where a man ran to get into a moving street car as it was going upon a -viaduct. He caught the railing and was being carried toward an upright that would knock him off. The conductor saw his peril and instead of signaling to stop by pulling the bell cord, he attempted to help the man in Ms struggle to get aboard. He failed and the man fell to the street below and was killed. We held that the conductor could not be
After careful consideration, we conclude that no ease was" made, and hence reverse the judgment.
