Soeder v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 19 May 1890 |
| Parties | Soeder v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.
Affirmed.
B. Pike for appellant.
(1) Plaintiff's testimony did not make a prima facie case and the demurrer to the evidence should have been sustained. Moore v. Railroad, 28 Mo.App. 622; Schutle v Railroad, 97 Pa. St. 455. (2) The court committed error in the admission of the testimony offered by plaintiff against the objection of defendant. Stephens v. Railroad, 96 Mo. 207; Railroad v. Gower, 31 Am. & Eng. R. R. Cases, p. 168; Penn. Co. v. Roy, 102 U.S. 459. (3) The court committed error in refusing to give the instructions asked by defendant. Malone v. Howley, 46 Cal. 409; Baxter v. Roberts, 46 Cal. 187; Sizer v. Railroad, 7 Lansing [N. Y.] 67; Strohlendorf v. Rosenthal, 30 Miss. 674; Haskin v. Railroad, 65 Barb. 151; 31 Am. & Eng. R. R. Cases, 162; Darracutts v. Railroad, 31 Eng. & Am. R. R. Cases, 162; Spelman v. Iron Co., 56 Barb. [N. Y.] 131; Wood on Master & Servant, sec. 414, p. 791. (4) The court erred in giving on its own motion the instructions numbered 1 to 9 to the jury. Wood on Master & Servant, sec. 368, p. 744; Duffey v. Upton, 113 Mass. 544; LeBarron v. Ferry Co., 11 Allen [Mass.] 312; Wood on Master & Servant, sec. 382, p. 754.
A. R. Taylor for respondent.
(1) The evidence was amply sufficient to take the case to the jury upon the question as to the cause of the death being the defective rail. Kelly v. Railroad, 70 Mo. 607; Buesching v. Gas Co., 73 Mo. 230; Schlereth v. Railroad, 96 Mo. 514; Schultz v. Moon, 33 Mo.App. 340, 341. (2) The cases of Moore v. Railroad, 28 Mo.App. 622, and Schutle v. Railroad, 97 Pa. St. 455, if holding as contended by appellant, are in flat conflict with the Missouri cases cited above. But the case of Moore v. Railroad rested for authority solely upon Schutle v. Railroad, supra, and the latter case distinctly holds that there was no evidence of a negligent act by the defendant. In this case, the evidence of a very defective rail is conclusively shown, and the connection between the defective rail and the injury is as direct as circumstances may show. (3) There is a legal presumption that deceased was in the exercise of due care at the time of his death. "The law, out of regard to the instinct of self-preservation, presumes that deceased was in the exercise of due care." Flynn v. Railroad, 78 Mo. 212; Buesching v. Gas Co., 73 Mo. 230.
OPINION
-- This is an action by the widow of William Soeder for damages for the death of her husband, alleged to have been caused by the negligence of the defendant, in whose employ the said Soeder was, at the time of his death, engaged in the discharge of his duties as a brakeman.
Three grounds of recovery are stated in the petition: First. That the accident was caused by the failure of defendant to have a sufficient number of men to manage and control the train; second, by reason of a defective brake upon the cars of said train, and, third, by the negligence of defendant in permitting its track to be, and remain, in a defective condition at the point where plaintiff's husband was run over and killed.
The first ground was practically abandoned on the trial; upon the second no evidence was introduced, and the case was tried, submitted and turned upon the third alleged ground of negligence. The plaintiff recovered judgment for thirty-five hundred dollars. On the trial, the defendant demurred to plaintiff's evidence. The material evidence for the plaintiff bearing upon the issue submitted was, in substance, as follows: Mrs. Soeder, the plaintiff, testified: That she is the widow of William Soeder; that, at the time of his death, on the twenty-seventh of August, 1886, he was twenty-nine years and six months old; that he was a brakeman in the employ of defendant, for whom he had been working in the yard since the fourth of July preceding his death; that he was a sober and industrious man, receiving as wages about seventy dollars per month; and, in answer to the question how many children she had, said: She further testified that her husband had worked about three years as fireman and brakeman for the Missouri Pacific Railway Company before he worked for the defendant.
C. W. Sergeant testified: That the track upon which the accident happened was an Iron Mountain track; that from Stein street as one goes down towards the river the grade is very steep; that they were "hauling" Vandalia, Ohio & Mississippi and Chicago & Alton cars that night, all of which were heavily loaded; they were transfer cars that had been taken out of the yard loaded with ore; that they only took half the cars at a time; shoved them on the switch track and left them northeast of the Stein street crossing, and went back to get the other half; that witness stood at the crossing to make the coupling; that they, he and Soeder, were shoving the cars in there around a sharp curve, and Soeder had to stand on the main track to pass signals from the engineer to witness. The examination then proceeded thus:
Q. "Who had to do that?" A. "Soeder."
Q. "After he signalled and the car moved, what did he do?" A. "He signalled back until I went in and made the coupling; after I made the coupling I gave the signal, all right, back up; I answered the signal to get on top."
Q. "Is that a brakeman's place?" A. "Yes, sir, especially shoving in on a track like that."
Q. "Where did you get up?" A. "Right at the Stein street crossing."
Q. "How was the train moving?" A.
After several questions were asked and answered as to the number of brakemen on the train, and the number that such a train ought to have, the examination on the main question was resumed, thus:
Q. "When did you next see the deceased, William Soeder, after you saw him get up on top of the car?" A.
He then says, in substance, that he went down on the side of the train opposite to that on which Soeder was lying and called him by name, got no answer, and went around on the other side of the train and found Soeder lying there, about forty-five, fifty or fifty-five feet northeast of Stein street; that, from the appearances, Soeder must have been dragged from twenty to twenty-five feet; that the wheels passed over him above the hips; his body was lying outside the rail, and his limbs were lying inside, under the cars; he was dead; that he examined the track there that night when he went to work the second time; that Davis, the night yardmaster, was with him; that there was a defective rail there, a short rail, not more than from fifteen to eighteen feet long; that what is called the "ball" on the short rail was completely worn off, which made a kind of "offset" of an inch and a quarter, which would cause a car passing over it "to bound and jump;" that there must have been from four to six feet of this rail in that condition; that the top of the rail was splintered off, and the body of the rail lay on the ties; that the condition of the rail would cause cars going over it to jump; that this defective portion of the rail commenced about three or four feet from where Soeder fell; you could see how far he was dragged by the cinders being dragged along with him, as though the place had been swept by a broom; this sweeping commenced three or four feet northeast of the defective rail; the train was going in a northeast direction; that he has examined the condition of this rail since the accident, and it is in about the same condition as it was then; that the rail connected with this rail was in a good condition; that the outside rail was higher than this short rail; that the joint connecting this short rail with the next rail was a bad one; that there was a "lip" on the rail there, which was a half an inch or three-quarters of an inch; that he did not notice any other rail near there; that Soeder got off on the south side of the crossing, on the south side of Stein street; that he thinks Stein street is probably about twenty-five or thirty feet wide. If thirty feet wide, it was about fifty-five feet from where Soeder got on top of the car to the point where this defect in the track was; that he didn't see him fall, and didn't see him when he fell.
On cross-examination this witness testified: ...
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