Rine v. Chicago & A. R. Co.
| Decision Date | 21 December 1889 |
| Court | Missouri Supreme Court |
| Parties | RINE v. CHICAGO & A. R. CO. |
1. Deceased, going from the street towards a depot 500 feet distant, walked on the main track 50 feet to a switch, and then on a side track, on which, some distance ahead, some cars were standing. An engine returning, cab foremost, from a coal shaft was then from 90 to 150 feet away. The engineer could have seen deceased while on the main track, and the fireman, being on top of the tender breaking coal, could have seen him at any time. The switch was open, and deceased was run over about 100 feet from it. Held that, as employes would naturally be watchful near a depot, and as the fireman would naturally be on the watch not to collide with cars which had shortly before been left on the side track, there was evidence tending to show that the engineer and fireman, who were not called as witnesses, knew that deceased was on the track in time to have avoided the accident.
2. Under Rev. St. Mo. 1879, § 2121, awarding a penalty for the death of any person from the negligence of "any officer, agent, servant, or employe whilst running or managing any locomotive, car, or train of cars," the negligence need not be that of the superior in charge.
Appeal from circuit court, Saline county; JOHN P. STROTHER, Judge.
H. I. Priest and G. B. Macfarlane, for appellant. J. D. Shewalter, for respondent.
This is the second appeal prosecuted by the defendant in this case. The first is reported in 88 Mo. 392. It was then, and is now, conceded that young Rine was wrongfully upon the track at the time and place when and where he was killed, and that he was guilty of negligence in going upon and remaining upon the track. In view of these facts, we held, on the former appeal, that the defendant's liability must be limited to negligence on the part of the fireman and engineer after they knew that Rine was in an exposed and dangerous position, and that, when they had such knowledge, it became their duty to use all the means at their command to save his life. The case was tried pursuant to those directions, on instructions given at the request of the plaintiff, and others given at the request of the defendant, to which no substantial objections are made.
The point is now made, and much relied upon for a reversal, that there is no evidence tending to show that the fireman or the engineer saw Rine on the track in time to have avoided the calamity.
While the evidence is, in a general way, the same as on the former appeal, it is not the same upon the question of knowledge of Rine's presence on the track, from the fact that the fireman and engineer were not called as witnesses on the second trial by either party. The evidence now is, in substance, this: Rine came into Corder on the local freight train from the east. The depot at that place is on the north, and the warehouse on the south, side of the main and two side tracks. Part of this freight train was left standing at the depot on the main track; and, while the evidence is not direct, it seems some of the cars were removed to the outer side track, and left standing at the warehouse. The engine and tender then went to a coal shaft, about a quarter of a mile west of the depot, and in the mean time Rine went to the village. On his return he came to a point where the highway crosses the main railroad track, which point is 500 feet west of the depot. He then went east towards the depot, on the main track, some 50 or 60 feet to a switch attachment, and then looked back, and must have seen the engine and tender on their return, for they were not more than 90 or 150 feet distant from him. He stepped on the outer side track, and walked on, with his back to the approaching tender and engine, the...
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