Chamberlain v. Missouri Pac. Ry. Co.

• Decision Date: 17 December 1895
• Citation: 33 S.W. 437,133 Mo. 587
• Parties: CHAMBERLAIN v. MISSOURI P. RY. CO.
• Court: Missouri Supreme Court

33 S.W. 437

133 Mo. 587

CHAMBERLAIN v. MISSOURI P. RY. CO.

Supreme Court of Missouri, Division No. 2.

December 17, 1895.

RAILROAD COMPANIES — NEGLIGENCE — EVIDENCE — QUESTION FOR JURY.

1. Where a train is running through a populous neighborhood, just outside the city limits, where laborers have for years been accustomed to use the tracks in going to their work, and the employés on the train see, or, by the exercise of ordinary care, may see, a person on the track in time to avoid a collision, but fail to use such care, the company will be liable, though the person injured is guilty of contributory negligence.

2. In an action against a railroad company for killing a trespasser on its track there was evidence that the accident was in a populous neighborhood, just outside the city limits, where laborers were accustomed to walk the tracks; that from the point where deceased was struck the track was level and straight for 2,000 feet in the direction from which the train came; and that no signal was given until the engine was nearly upon deceased. Held, that it was for the jury to say whether defendant's employés might, by the use of ordinary care, have seen deceased in time to have avoided the accident.

Sherwood, J., dissents.

Appeal from circuit court, Jackson county, E. L. Scarritt, Judge.

Action by Olive Chamberlain against the Missouri Pacific Railway Company for causing the death of plaintiff's husband. From a judgment for plaintiff, defendant appeals. Affirmed.

Elijah Robinson, for appellant. Kinley & Kinley and W. D. Jameson, for respondent.

GANTT, P. J.

This is an appeal from a judgment of the circuit court of Jackson county, Mo., in favor of Olive Chamberlain, the widow of Godfrey Chamberlain, who was killed by a train on the Missouri Pacific Railway Company's track, in the East Bottoms near Kansas City, on September 2, 1892. The action is grounded upon the negligence of the defendant's servants in running its train over said Godfrey Chamberlain without warning, after they discovered he was unconscious of the approach of said train. Plea of contributory negligence, and denial of negligence of the trainmen. A jury was duly impaneled. The facts developed were few, and exceedingly simple. Where the tracks of the Missouri Pacific pass the eastern boundary line of Kansas City, they are prolonged through what is known in all that section as the "East Bottoms" for two or more miles. These bottoms contain many large factories, industries that give employment to large numbers of laborers, such as grain elevators, factories, and mills; and on account of their proximity to the city, and their great fertility, these bottoms are largely devoted to market gardens and truck patches, and the gardeners and their laborers reside along this track. About the point where the plaintiff's husband was killed, a private road crossing had been opened across defendant's tracks by the defendant, and planked for the conveyance of passers-by. As the defendants tracks leave the city limits, coming east, they make a curve, and from that curve east they are almost straight, and very level, and a man can readily be seen from the eastern part of the curve a distance of 2,000 feet east. The testimony in behalf of plaintiff tended strongly to prove that for a number of years prior to this unfortunate killing a good many workmen and pedestrians were in the habit of using these tracks of defendant in going to and from their work, and more particularly in the early morning from 6 to 7. The engineer in charge when the plaintiff's husband was killed was a witness for the defendant at the trial, and was asked, on cross-examination: "State if, in your testimony before the coroner, you did not state, `I hardly ever go along the road — this track where this man was killed — but what there is somebody walking along the track. It is traveled a good deal by people.' Answer. I could not say whether I did or not. I don't remember. I was running extra on passenger trains. * * * I see men on most every track on any railroad. * * * There were elevators in the East Bottoms, and there was a sewerpipe factory west of where the accident occurred. I have seen people on the tracks more than once, and probably more than three times. I am aware that people walk on the track there, and everywhere else." W. C. Hutto, a witness for plaintiff, testified that he lived in the East Bottoms, and worked at the sewer-pipe factory. Went to work about 7 every morning. "A good many people walk down the Missouri Pacific track early in the morning, going to their work. People have been going down that track every morning since it was built, and before this accident happened, last September." George Rowley testified that it was a thickly settled neighborhood where the accident happened. Often walked on the track, and saw others do so. On the morning of September 2d it was clear and bright. Plaintiff's husband and Nicholas Williams were walking east, down the track of defendant, on their way to work in the East Bottoms, and had reached the point very near to where the private crossing crossed defendant's tracks. A passenger train on the tracks of the Chicago & Alton Railroad was passing them, going west to the city. Just at this juncture a passenger train of the defendant, in charge of Harry Lewis as conductor and F. Raymond as engineer, going east, running from 40 to 50 miles an hour, suddenly gave an alarm whistle. Williams, who was walking on the end of the ties, jumped, and escaped injury, but Chamberlain, who was walking between the rails, was struck, and instantly killed. The engineer testified that he sounded the crossing whistle, to warn them, when he was probably 300 feet or a little more from them. He ran perhaps two seconds more from the time he blew the warning, possibly four seconds, thinking they would look around; but, as they did not look back, he then set the brakes, and then gave the alarm whistle, and continued to blow until he struck Chamberlain. The engineer is corroborated by the brakeman, Wareham, but is sharply contradicted by Williams, who was walking with deceased at the time, who says the engine was nearly on them before it whistled at all. Gill, who was working for a gardener about 75 yards distant, and reached the dead body before the train stopped, testified unequivocally that the train was running at full speed when it struck the deceased. He says: "I saw them coming down the track. They were carrying dinner pails. They attracted my attention, and I saw this train coming down the track behind them, and I felt alarmed about them. I thought that they did not know that this train was coming down the track. They did not walk like they were paying any attention to it at all. I saw the train some distance before it struck him. I don't think they slacked the speed any before Chamberlain was struck. It appeared to me they were right at him, most, when they gave two or three sharp whistles. That is the only time they whistled that I know of. I think I would have heard it if there had been any other whistles. I did not hear it whistle until it got on to them." J. F. Amburger, yard clerk of the Milwaukee Railway, was a passenger on the train, going to his work. He says: "As we were near the Milwaukee crossing that morning, I was sitting in the combination car, with the window up, and I heard the alarm sounded for, I supposed, stock on the track; and I stuck my head out of the window, and just as I did I saw this man Williams get off the track. The train was going at its usual rate of speed when the alarm was given. After they began to sound the alarm whistles, they began to slow up. I heard no whistle but the three or four sharp alarm whistles I have mentioned. There was no crossing whistle sounded." The conductor, Lewis, and baggage man, Moore, only heard the sudden alarm whistles. Williams, who was with deceased, says that from time to time he looked back, to see if any trains were coming, and saw none. The engineer testified that it was possible that he saw deceased when he first turned the curve, but gave no signal until within 400 or 500 feet of him. He says he saw the Chicago & Alton train before he noticed the man on the track. As an excuse for not observing the man sooner he says: "The engine was not steaming good. I had shut the pump off, and, before shutting the engine off after I shut the steam off, I had to put the pump to work again. The fireman was at work at his fires. I had been talking to him about the fires. The inspirator was not working, and I was endeavoring to adjust it. When I went to start the injector, I opened what is known as the `foot cock' behind me. I had just put this injector at work immediately before I saw this man on the track. At the rate of speed we were going, the train could hardly have been stopped in less than 600 feet."

At the close of the evidence the court gave the following instructions for the plaintiff: "(1) The court instructs the jury that if they shall believe from the evidence that Godfrey Chamberlain, at the time he was killed, was the husband of plaintiff, and that this suit was brought within six months after his death, and shall further find from the evidence that the track where Godfrey Chamberlain was struck was near a crossing over defendant's tracks for the accommodation of passers-by, and that the track was level and straight for a long distance east and west from the point of the catastrophe, and that said track, for about five years prior thereto, and at about the time of such striking said Chamberlain, had been and was being frequently used by pedestrians in going to and from the northeastern part of Kansas City, and that said road ran through a thickly settled portion of the country, just outside of Kansas City, and that Godfrey Chamberlain, while walking upon defendant's track, became in imminent peril of being struck by defendant's train, and defendant's employés in charge of said...