Smith v. Missouri Pac. Ry. Co.

• Decision Date: 19 December 1892
• Citation: 113 Mo. 70,20 S.W. 896
• Parties: SMITH v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

20 S.W. 896

113 Mo. 70

SMITH v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

December 19, 1892.

DEATH OF EMPLOYE — NEGLIGENCE — PRESUMPTION FROM RAILROAD COLLISION — DIRECTING VERDICT.

1. In an action against a railroad company for personal injuries, it appeared that plaintiff's decedent, a locomotive engineer on defendant railroad, was killed, while running at full speed and two minutes ahead of time, in a collision with a freight train. Decedent's train was the second section of a passenger train, and by a rule of the road was to follow the time of the first section by 10 minutes. Decedent's train had the right of way, and was not to stop at the station of the accident unless to let off passengers, but, by a general rule of the road, all trains were to approach a station at which they were not to stop at a reduced rate of speed. At the station of the accident a freight train which had been side-tracked came onto the main track to allow the first section to pass. The headlight on the locomotive of the freight train could be seen for at least half a mile in the direction from which decedent's train was approaching. A switch signal of danger was open, and could be seen for a third of a mile, and a brakeman had been sent forward to signal decedent. It was with the freight train that decedent's train, which could be stopped in a quarter of a mile, collided. Held, that there was not sufficient evidence to submit to a jury, no negligence on the part of defendant being shown.

2. In an action against a railroad company for personal injuries, it is reversible error to refuse to sustain a demurrer to the evidence, when the evidence does not disclose any negligence on the part of defendant.

3. The mere fact of a collision does not establish a presumption of negligence on the part of a railway company in favor of its employes, such a presumption existing only in favor of passengers.

4. It is not negligence per se for a railroad to have three freight trains reach a station at one time, at which station a passenger train with a right of way is about to pass, provided proper precautions are taken for the safety of the employes.

Appeal from circuit court, Pettis county; RICHARD FIELD, Judge.

Action by Sally Smith against the Missouri Pacific Railway Company for personal injuries to plaintiff's decedent. From a judgment for plaintiff, defendant appeals. Reversed.

H. S. Priest and W. S. Shirk, for appellant. G. W. Barnett and Louis Hoffman, for respondent.

GANTT, P. J.

This is an action by the plaintiff, as the widow of Samuel S. O. Smith, for damages resulting to her from his death, occasioned by the alleged negligence of the defendant, in whose service he was employed as locomotive engineer at the time of his death. The petition is substantially as follows: That on the night of July 1, 1887, the plaintiff's husband was running an engine pulling the fast mail train, from Kansas City to Sedalia; that it was a dark and rainy night; that it was defendant's duty to furnish a safe track, free from obstructions, for the passage of said fast mail train of cars, it being entitled to the right of the track in preference to all other trains, and that it was defendant's duty to keep its main track clear and unobstructed by other cars, to allow this train to travel safely; that said fast mail train was not required to stop at the station of Lamonte, but it was the duty of plaintiff's husband to run his train through said town at full speed, and that it was the defendant's duty to keep its main track open and free from obstruction, and have no other cars thereon; that on said night defendant carelessly and negligently caused a train of freight cars to be placed upon the main track at said station of Lamonte, and permitted it to be standing thereon, at the time said fast mail was due at said station; that defendant did not notify Smith that said freight train was upon said track, and neglected to send out any signals or lights or notice thereof; that it was a dark night, and there were no lights to indicate where said freight train stood, or that any freight train was there; that said Smith, without any notice or knowledge that said train was there, ran his engine into it, and he was killed. The answer is a general denial, and a plea of contributory negligence directly causing his death. The plaintiff's evidence consisted of her own evidence, and Dr. Walker's and Mr. Barnett's. The plaintiff simply testified that she was the widow of Samuel Smith, the deceased engineer; that she had one child, a son, 4 years old; that her husband was an engineer in the employment of the Missouri Pacific Railway Company; that he was brought home dead on the 2d day of July, 1887, and she was told that he was killed in a wreck of his engine at Lamonte, while pulling a passenger train, the night before. This was admitted by defendant. Her husband was earning $120 per month. He was 41 years old, and a stout, healthy man. Dr. Walker testified that he lived at Lamonte; was a practicing physician; remembered a wreck at Lamonte on the night of July 1, 1887; was called to see Smith, the engineer. He only lived about 30 minutes after he reached him. The wreck occurred 500 yards west of the depot in Lamonte, and a few feet west of the west end of the switch. It was a dark rainy night. There are two side tracks at this station, one on the south side of the station house or depot, the other on the north side of the depot. Both were pretty full of cars at the time of the accident. He was acquainted with the grades of the railroad. He testified it was down grade for three quarters of a mile coming east towards the depot from the west, from a half to three fourths of a mile. A person could see the town from a point about one mile west very distinctly. Then, as you approach the town, you come to a little sag in the road. You can stand at the point of the wreck and see the elevation, but not the road beyond. From Lamonte you can see places beyond the elevation. He testified that passenger trains like the one deceased was pulling usually passed the station without stopping, unless they had passengers for the station. He also testified that standing at the west end of the switch, where the accident occurred, you could have seen an engine with a headlight burning a mile distant, and an engineer coming from the west could have seen the headlight of an engine standing on the track at the switch, for a half mile, anyway. He had lived in Lamonte 10 years, about 50 feet from the railroad track, and had never seen a freight go through the town at night without a headlight burning. Mr. Barnett corroborated Dr. Walker as to the grades. He thought an engineer coming from the west could see another locomotive at the switch as soon as he reached the summit of the hill beyond Lamonte, a mile and a half distant. "There is nothing to obstruct the view there for some distance west of the west end of the switch. It is wholly unobstructed for a quarter of mile." This was all of plaintiff's oral evidence. Plaintiff put in evidence defendant's time-table or schedule in force at the time, under which this passenger train No. 4 was running on the Missouri Pacific Railroad, showing that the train on which Engineer Smith was killed was running as the second section of No. 4, and was due in Lamonte at 11:42 that night, and that trains marked with a red dagger indicated that they did not stop at stations for passengers, and this second section of No. 4 was so marked; and showing, also, that trains or stations marked with large figures denote meeting and passing of trains, and that Lamonte was not so marked with large figures, and that the second section of train No. 4 was not required by this schedule to stop at Lamonte; that Knob Noster, the station west of Lamonte, was the passing station, and the train did not stop after leaving that point till it reached Sedalia. It also appeared that this section was required by schedule to run 10 minutes behind the time of first section, and was running on schedule time, without special orders that night.

Defendant offered a demurrer to the evidence, which was overruled, and defendant excepted. Thereupon the defendant called Fred Williams, the engineer of the freight train with which deceased collided, being the third section of freight train No. 35. He arrived at Lamonte at 11:15 that night, and pulled in on north switch or...