Sullivan v. Gideon & N. I. R. Co.

• Decision Date: 13 April 1925
• Docket Number: No. 24742.,24742.
• Citation: 271 S.W. 983
• Court: Missouri Supreme Court
• Parties: SULLIVAN v. GIDEON & N. I. R. CO.

271 S.W. 983

SULLIVAN v. GIDEON & N. I. R. CO.

No. 24742.

Supreme Court of Missouri, Division No. 1.

April 13, 1925.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by Samantha Sullivan against the Gideon & North Island Railroad Company. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which certified case to Supreme Court at request of dissenting judge. 213 Mo. App. 20, 247 S. W. 1010. Judgment reversed.

Gallivan & Finch, of New Madrid, for appellant.

T. R. R. Ely and George Smith, both of Kennett, for respondent.

SEDDON, C.

Respondent (plaintiff) sues for the alleged wrongful death of her husband, J. W. Sullivan, arising out of the alleged negligence of appellant (defendant), in the town of Gideon, Mo., on September 6, 1919. Her petition charges defendant with negligence in these respects: That, on September 6, 1919, as the said J. W. Sullivan was attempting to cross the railroad main track at a public crossing in Gideon from the south, while exercising due care and caution; he was struck by a flat car of defendant, dragged for a long distance, crushed and run over by said car, from the effects of which injuries he immediately died; that the steam engine of defendant was at the time pushing about 15 small flat cars from the west, and that said engine was about 400 feet west from said public crossing; that defendant was operating said locomotive and train by unskilled and incompetent employees, and that the brakes being used on said train were wholly inadequate to be effective in operating said train; that the front car, being so pushed by said engine, was the car which struck deceased at said public crossing; that the agents, servants, and employees of defendant who were operating said train at the time negligently failed to sound the whistle on said locomotive engine or ring the bell attached to said engine within 80 rods of said public crossing; that defendant had no one at said public crossing nor on the car, that struck deceased nor anywhere else to be on the lookout for persons on said railroad, or approaching said railroad, at said public crossing, to give warning or signals of the approaching train; that said flat cars were not over 4 or 5 feet high, and did not extend in height above a team and wagon standing by the track; that said cars were coming noiselessly down the track, and deceased had no warning of their approach, and did not and could not, by the use of ordinary care, have seen or heard said train until he was struck by the same; that said train was upon him before, by the exercise of ordinary care, he could have seen or heard it; that, as said car struck deceased, he grabbed hold of said car and held on to it for a long distance in a perilous position, and finally, his hold giving way, he was dragged under said train while the same was yet moving and killed by said train; that defendant, by the use of ordinary care, could have discovered the perilous position of deceased in time to' have prevented his being run over, if it had had a man on the rear car so backing up, or somewhere else, on the lookout for persons on said railroad track at said public crossing to give signals of warning and danger to such persons, as in duty bound it was required to have had, and by the use of ordinary care it could have stopped said train in time to have prevented the death of said J. W. Sullivan; that the agents, servants, and employees in charge of said train which ran over deceased and killed him saw, or, by the exercise of ordinary care, could have seen, deceased in a place of danger and peril in time, by the exercise of ordinary care, to have stopped said train and avoided running over and killing him.

Defendant's answer was a general denial, coupled with the defense that "J. W. Sullivan, by his own negligence, directly contributed to his' own death by walking, in broad daylight, from a place of safety onto the railroad track over which defendant operated its trains and immediately in front of a train moving over said track, when if he had either looked or listened he could and would have seen said train and avoided being struck thereby." No reply is shown upon the record, but the cause was tried as though a reply, denying generally the new matter set up in the answer, had been filed.

The evidence adduced by plaintiff tends to show that the casualty occurred between 8 and 8:30 o'clock on the morning of September 6, 1919, at a point where a public road or street in the town of Gideon crosses the tracks of the St. Louis & San Francisco Railroad Company, jointly used by the latter railroad and defendant company. There are two railroad tracks across this public road, one a main line track, and the other a switch track, running parallel with said main track and immediately south thereof and about 12 feet distant therefrom. The public road runs north and south, and the railroad tracks run east and west, intersecting the public road at approximately a right angle. Deceased was 53 or 54 years of age, his health was good, and his eyesight and hearing were unimpaired.

Sam 3. Harris testified:

"I was in a coal car loaded with gravel or road material. The street runs north and south as it crosses the railroad. The local train came backing east, and there was a flat car or two ahead past the car I was in, and I heard the screams of some women, and I seen Mr. Sullivan with his left arm up on top of the flat car. I didn't see the car hit him. He went about 50 or 60 feet, about the length of 2 cars, in that position before he fell off. I did not see Mr. Sullivan on the track at the time the train was backing up "and before he grabbed the car. There was 1 car of gravel between me and the crossing; 1 car of gravel right up against the street, and I was in the second car from the street. I never measured it, but I judge the main line track and the switch track at that crossing anywhere from 12 to 15 feet or 18, something like that, apart. There were cars on both sides of the crossing. There is a little feed barn about 50 or 60 feet of the crossing, on the east side. I was the length of 1 flat car from the crossing. I never noticed this train backing up from the west until it was right even with us. I don't know how fast it was going; it wasn't going very fast. I did not hear any whistle. No bells were ringing. I did not see any person on the end car going east as it approached that crossing. There was no one on the crossing to give warning to passengers. I don't know how high the cars were the engine was pushing; anywhere from 4 to 4½ feet I judge. They were standard flat cars. There were about 14 or 15 cars in the train. The engine was at the west end of the cars, pushing, going east. The length of the cars was about 36 feet—standard average length of cars. It was the train of the Gideon-North Island Company on the Frisco Railroad Company's tracks. Immediately afterward I went to where this man was killed. He was about 50 or 60 feet east of this crossing when he was run over. When first seen him he had his left arm right on the car, and then he got down in a little ways, and I think it was the two trucks of the first front car and one truck on the second car on the south side of the railroad that ran over him. I am some familiar with the movement and speed of trains. This train was moving anywhere from 5 to 8 miles an hour, just to guess at it. There was a man down about middle ways of the train, anywhere from 5 to 6 cars from the east end of the train. He was putting some stakes on flat cars that they load logs on, and he was doing something to those stakes. There was a sawmill just west of the crossing a 150 feet. It was in operation that day; just making the usual noise of a sawmill. Ordinarily it is a loud noise. There was a machine shop on the east side of the street and south about the same distance from the crossing that the mill is. I think it was in operation on that day. Both the mill and shop were in operation and making the usual noises on that day. The depot is about 30 or 40 feet west of the crossing. That makes the crossing east of the depot. That crossing is a public street; the principal crossing of the town by pedestrians and wagons and teams and cars. I couldn't tell what time in the day; something around 8 o'clock, or maybe a little after, in the morning. I don't know as I can state what the condition of the weather was that day. Wasn't raining. The sun might have been shining. I am not going to say it was or it wasn't. It wasn't raining; no falling weather. That street is about 40 or 50 feet wide. When I first saw him he was on the west end of the crossing, and was hanging on the car when I saw him. I noticed the cars; watched the cars run over him. He was about 50 or 60 feet down the track from the crossing. His body was down by the hay barn. The hay barn was some 40 feet from the street. I figure from where the car hit him about 2 car lengths until where it left him. I don't know how fast the train was moving; anywhere, I judge, from 5 to 8 miles an hour; something like that. I don't know the distance between those tracks; 12 or 14 or 15 feet. I never measured that. There are two tracks there in front of the depot. The main line track, over which this train was operated, is the north track and the one nearest the depot. Parallel with that main track is this switch track. There were 2 cars on the switch track west of the crossing and I was on the second car. Going from south to north, you would cross the switch track first. After you leave the switch track, you would cross a space probably something like 12 feet, I never measured it; the usual space between a switch and a railroad. The parties that were hollering were between the two tracks, and it was the Shaw sisters. They were coming across the end of the crossing and were going north, and their screams attracted my attention, and I could see them between the tracks;...