Degonia v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 23 December 1909
• Parties: IDA DEGONIA v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

123 S.W. 807

224 Mo. 564

IDA DEGONIA v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri

December 23, 1909

Appeal from St. Francois Circuit Court. -- Hon. Chas. A. Killian Judge.

Reversed.

Martin L. Clardy and James F. Green for appellant.

(1) A clear case of contributory negligence on part of the deceased was shown by the evidence, and the case should not have been submitted to the jury: Evans v. Railroad Co., 178 Mo. 512; Davies v. Railroad, 159 Mo. 1; Wheat v Railroad, 179 Mo. 572; Riccio v. Railroad, 189 Mass. 358; Aerkfetz v. Humphreys, 145 U.S. 418; Clancy v. Railroad, 192 Mo. 615; McGrath v Railroad, 197 Mo. 97; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Loring v. Railroad, 128 Mo. 359; Fore v. Railroad, 114 Mo.App. 554; Sharp v. Railroad, 161 Mo. 214. (2) Degonia and the train employees were fellow-servants. The right of action given by Sec. 2873, R. S. 1899, is one in favor of the party injured only, and such cause of action does not survive where death ensues. Strottman v. Railroad, 211 Mo. 227; Broadwater v. Railroad, 212 Mo. 437; Sec. 2875, R. S. 1899. (3) Plaintiff's instructions 1 and 2 were erroneous. Defendant's instruction 6 stated the correct rule. Cahill v. Railroad, 205 Mo. 411; Evans v. Railroad, 178 Mo. 508; Loring v. Railroad, 128 Mo. 349; McGrath v. Railroad, 197 Mo. 97; Clancy v. Railroad, 192 Mo. 615; Rine v. Railroad, 88 Mo. 392.

Jerry B. Burks and B. H. Boyer for respondent.

(1) The court committed no error in submitting the cause to the jury. Under the pleadings and all the evidence there was abundant evidence to warrant a verdict for plaintiff. Schlereth v. Railroad, 115 Mo. 87; Heinzeman v. Railroad, 182 Mo. 611; Mills v. Railroad, 199 Mo. 56; Reyburn v. Railroad, 187 Mo. 565; Payne v. Railroad, 105 Mo.App. 155. (2) The above and following cases clearly establish the principle that those in charge of a train are compelled to be on their guard where the presumption of a clear track does not obtain and that failure to look and see is as negligent as seeing and failing to act when the peril is obvious. Eppstein v. Railroad, 197 Mo. 720; Fearson v. Railroad, 180 Mo. 208; Morgan v. Railroad, 159 Mo. 262; Railroad v. Hudson, 110 S.W. 590; Railroad v. Malone, 110 S.W. 958; Ahnefeld v. Railroad, 212 Mo. 280. (3) Each of the instructions given on the part of plaintiff are correct declarations of law, aside from the cases cited under our point 1, under the following well considered cases. Everett v. Railroad, 214 Mo. 54; Waddell v. Railroad, 213 Mo. 8; McQuade v. Railroad, 200 Mo. 150. (4) Instruction 5, refused appellant, was not a correct declaration of law. It ignored the fact that warnings by bell or whistle could have been given and the injury thereby averted. This precise question was passed upon in the Heinzeman case, 182 Mo., supra. (5) Instruction 6, refused appellant, likewise is not the law and the court committed no error in refusing it. In the first place, under the well considered cases defendant's servants are required to give timely warnings of the approach of a train. This is recognized both in the Heinzeman and Reyburn cases. Secondly, defendant's servants in charge of the engine are required to be on guard to discover persons at or near a point where they are expected to be on the track. This is clearly demonstrated in the Eppstein, Morgan, Everett and Schlereth cases, supra. It is also misleading, as the first impression given by it is that unless the employees could stop the train in time, there would be no liability, and, therefore, narrows the issues as made by the evidence. (6) The deceased, being a section hand, was not a fellowservant of those in charge of the engine. Schlereth v. Railroad, supra; Sullivan v. Railroad, 97 Mo. 113; Swadley v. Railroad, 118 Mo. 268; McKenna v. Railroad, 54 Mo.App. 161; Heinzeman v. Railroad, 182 Mo. 611.

GRAVES, J. Burgess and Woodson, JJ., concur in toto; Fox, J., concurs in all of the opinion and the result, except he expresses no opinion as to whether or not there is a conflict between the Evans and other cases cited in this opinion; Gantt, J., concurs in the result, and all of the opinion except what is said concerning the Hinzeman and Mills cases, and he is of opinion there is no conflict between these cases and the Evans and other cases mentioned in the opinion. Valliant, C. J., and Lamm, J., dissent.

OPINION

In Banc

GRAVES J.

Plaintiff, Ida Degonia, sues under section 2864, Revised Statutes 1899, for the alleged negligent killing of her husband by one of defendant's passenger trains coming from the north and approaching the depot at Mineral Point, Missouri. The negligence charged in the petition is as follows:

"Plaintiff further states that the injuries to and subsequent death of her said husband as aforesaid was caused by and was the direct result of the wantonness, recklessness and carelessness of defendant's agents and servants in charge of the train aforesaid in this: they negligently ran the said train at a high rate of speed; negligently failed to keep a proper watch or lookout for deceased and other persons or objects in and upon or about the track of defendant at the point where deceased was killed and at the places along such track in the near vicinity thereof; negligently failed to slow up or to stop said locomotive and cars upon approaching the deceased and upon the discovery of his peril; negligently failed to give any alarm, sound the whistle or ring the bell of the said locomotive aforesaid, and negligently failed to give to deceased and others there present any sort of warning or notice of the approach of said train. And plaintiff avers and states the facts to be that defendant's agents and servants in charge of said train well knew at the time that many persons frequented its track in the vicinity of the station aforesaid, and at other points between the station and the point where her husband was killed, and well knew that deceased and others of the defendant's employees were required to work in and upon the track of defendant at or near the point where he was killed, and well knew that it was highly dangerous and unsafe to lives of persons to run its cars and to manage its train as hereinbefore set forth, or by the exercise of reasonable care could have known all said facts. And so plaintiff says that had defendant, its agents and servants in charge of the said train exercised the care and caution incumbent upon them in the management and handling of the locomotive and cars aforesaid and keeping the proper observance and lookout for the safety of persons who might be upon or about its said track, then the injury to and the death of her said husband could and would have been prevented."

The answer was a general denial and coupled therewith a count charging contributory negligence. Reply was in usual form.

Upon the trial plaintiff obtained a verdict for $ 5,000, upon which judgment was entered. After all formal and necessary steps were taken, the defendant appealed the cause to this court.

The case is such that it demands a detailed statement of facts. Mineral Point at the date of the accident in 1904 was an unincorporated village having a population variously estimated at two hundred to two hundred and fifty inhabitants. The main line of defendant's road runs through said village practically from north to south. Most of the little village is to the west of the railway tracks. The switch yards are practically all north of the depot, although on the east side of the main track are two switch tracks, the east one of which has its southern terminus about opposite the depot, and the west one of which has its southern terminus about two hundred to three hundred feet south of the depot. On the west side of the main line is a switch track which is entirely north of the depot and north of a public road and crossing hereinafter to be commented upon in the course of the statement. To the west of the depot ran what is known as the Potosi branch of the defendant's road, which branch line connected with the switch on the west side of the main line, and after passing the depot took a southwesterly course. Less than five hundred feet east of the depot and defendant's tracks runs what is called Mill Creek, and there is but slight territory between the right-of-way and creek to be occupied by the villagers.

Now to the locus of the accident. To the north of the depot was a public road, said by one of the witnesses to be an extension of what is called Fifth Street in the town. This Fifth street is sixty feet in width. At this point the right-of-way is three hundred feet wide or one hundred and fifty feet on each side. At this road crossing the defendant had cross fences and cattle-guards. This is well illustrated by a photograph in evidence, which photograph we incorporate herein at this point as a part of the statement, and mark it "A."

[SEE ILLUSTRATION IN ORIGINAL]

[SEE ILLUSTRATION IN ORIGINAL]

This photograph was taken so as to show the depot and the situation to the north thereof. From the center of the depot to the cattle-guard was one hundred feet, and between the depot and the fence shown in the picture ran this public road. From the cattle-guard to the water tank, to the north thereof, it is about two hundred or more feet. To the east side of the main track were three objects frequently mentioned in the evidence, to-wit, the water tank, the pumphouse and the toolhouse, as are best illustrated by another photograph which we incorporate in this statement and mark it "B."

The pumphouse is to the north and is just four feet from the end of the ties on the main line. The tank is about the same distance and the toolhouse is thirteen feet...