Neville v. St. Louis M. B. T. Ry. Co.

• Citation: 158 Mo. 293,59 S.W. 123
• Parties: NEVILLE v. ST. LOUIS M. B. T. RY. CO.
• Decision Date: 12 November 1900
• Court: United States State Supreme Court of Missouri

59 S.W. 123

158 Mo. 293

NEVILLE v. ST. LOUIS M. B. T. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

RAILROADS — PASSENGER'S NEGLIGENCE — INJURIES.

Deceased was assisting in a shipment of cattle, and when the train was taken charge of by defendant the caboose was taken off, compelling deceased and others to ride on top of the cars. It was early in the morning, and quite dark, and as the train entered the stock yards it slowed up, to allow the conductor to enter the office and get orders. Almost immediately after the conductor signaled to go ahead deceased fell from the train while attempting to walk from one car to another. The train was running very slowly and smoothly, and there was no unusual jolt or jerk. Held, that deceased assumed the risk in stepping from one car to the other.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by William C. Neville, for the benefit of the next of kin of Eugene Neville, deceased, against the St. Louis Merchants' Bridge Terminal Railway Company, to recover for the death of deceased. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for damages for personal injuries, resulting in death, to Eugene Neville, a minor, 16 years old, at the National Stock Yards, in East St. Louis, Ill. The suit is brought by the father of the deceased for the benefit of the next of kin. The Illinois statutes create a liability whenever the death of a person is caused by the wrongful act, neglect, or default of another in all cases where the party injured might sue if the injury had not resulted in death, and permit the action to be maintained in the name of the personal representative of the deceased for the exclusive benefit of the widow and next of kin of the deceased. Sections 1, 2, c. 70, Rev. St. Ill. The laws of Missouri (Acts 1891, p. 68) provide that whenever any cause of action has accrued by virtue of the laws of any other state, and the person entitled to maintain such action in such other state is not entitled to maintain the action under the laws of this state, the court shall appoint a person to maintain the action for the benefit of the persons entitled to the proceeds under the laws of such other state. Accordingly the circuit court appointed the father of the deceased to maintain this action for the benefit of the father, brothers, and sisters of the deceased, the mother being dead. The petition charges three acts of negligence and wrongful conduct: First, failure to provide a caboose car to its freight train on which deceased was a passenger; second, forcing the deceased to take a position of great danger, to wit, to ride on the top of the freight cars; and, third, so carelessly and negligently managing and running its train that, by careless and negligent jolting of the cars, the deceased was thrown from the top of the cars, and run over, and injured so that he died. The answer is a general denial, and plea of contributory negligence.

The trial developed these facts:

The deceased, Eugene Neville, was a minor, not quite 17 years of age. On October 16, 1895, Sayers Bros. & Hayes shipped 10 cars, loaded with cattle, from Adair, Indian Territory, to St. Louis, over the Missouri, Kansas & Texas Railroad. Neville accompanied W. T. Sayers and his drover, W. H. Cain, to assist in looking after the cattle. They rode in a caboose, attached to the train, until they reached the terminus of the Missouri, Kansas & Texas Railroad in North St. Louis. There the caboose was detached from the train, and the cars containing the cattle were turned over to the defendant, to be carried, with ten other cars, to the National Stock Yards, in East St. Louis, Ill. Some one, it does not appear who, or, if so, by what authority he acted, told them to get on the top of the freight cars; but Sayers and Cain got on the top of the cars, and the deceased followed them. There was no other place provided for them to ride. When the train reached the National Stock Yards the engineer shut off the steam, and the train ran by its momentum, very smoothly and slowly, not half as fast as a man could walk. Cain got down off of the train, while Sayers and Neville remained on the top of the cars. The conductor went into the office, and exhibited his waybills to the agent, and was told by him to set his first car at chute 18. What then occurred is best told by the testimony of the several witnesses.

W. T. Sayers, plaintiff's witness, testified: "Q. How did you get from St. Louis to the National Stock Yards? A. Rode on top of the cattle car. Q. Who rode on the top of the cattle car with you? A. W. H. Cain, young Neville, and myself. Q. What became of Eugene Neville? A. He fell from the train. Q. Where were you at the time? A. In East St. Louis National Stock Yards. Q. What was the result? A. Death. Q. Was he (Neville) in the act of stooping to get down when he fell, or did he just walk right off the train? A. He did not make any effort, as I saw, to get off the train. He simply walked off. Q. Did you see what Mr. Neville was doing when he fell? A. Yes; he was in the act of getting down from the train. Q. Had the train stopped? A. No, sir. Q. Were you walking with him? A. No, sir. Q. Where were you at the time he fell, with reference to the center of the car? A. I was near the center of the car. Q. At what speed would you say the train was moving at that time? A. Very slow. Q. It had almost stopped, had it not? A. It had. Q. And it was then at the National Stock Yards, in East St. Louis? A. It was in the National Stock Yards, in East St. Louis. Q. In what space did the train stop? A. In a very short space. Q. Only one truck struck him, — was that right? A. He walked off the front part of the car in the direction the train was going, and was picked up near the rear end of the car he fell from. Q. What effort was made by the train to stop? A. The train had stopped. It was in the act of stopping when he fell. Q. Was the train being operated smoothly, do you know? A. It was. Q. Mr. Sayers, how was the train being operated at the time of the accident? A. It was smooth and good, — operated well. Q. Had it stopped before the accident? A. I don't think it had. Q. You had been and were at the time of the accident riding with Mr. Neville on the top of the car, the front trucks of which ran over him? A. Yes, sir. Q. Please state just exactly what he did from the time he left you on the car until the accident. A. He walked away from me, is all. Q. At the time he fell from the car was there any jolting or jarring of the train? A. There was not."

W. H. Cain, plaintiff's witness, testified that when the train reached the stock yards it was running very slowly and smoothly; that he got down off of the cars while the train was running, and went right into the office; that he heard Sayers call, and he ran back to the train, and Sayers told him that Neville had fallen between the cars; that he did not see the accident, but was in the office, about two car lengths from the place where they took Neville from under the car.

Lemuel P. Howard, plaintiff's witness, testified that he rode over to the stock yards on top of the train with Harding, Cain, Neville, and others unknown to him; that the weather was cool. "When we got to the National Stock Yards witness got off of the cars, and went into the receiving clerk's office. When he got off, the train was near to a standstill, but was in slow motion, running about as fast as a man can walk. It run about thirty feet after he got off before it stopped. To the best of his knowledge, the train started again, but he would not be positive. About a minute after he got in the receiving office he heard some one say, `My God! There is a man killed.' This was just after witness thought the train started again. He started to run out of the shanty, and heard Mr. Cain say the boy was killed. Then he and Mr. Harding ran over there, and found the train had been cut in two. Mr. Harding went under the car to the boy. Some one called for a board to lay him on, and he was laid on an old door, and carried into the shanty. This was done just as quick as they could, — about five minutes after the accident. When they got him into the shanty, Mr. Cain asked the boy how he came to get hurt. He said it just shook him off. He also asked if some one would telegraph to his father at Olean, Missouri. He was asked if he thought he was hurt very badly, and he said, `No, he thought he would get well.'" Cross-examined, the witness said, among other things: "The statements made by Mr. Neville were immediately after he was carried into the shanty. The distance between the shanty and the place where he was picked up was between thirty and forty feet. The car that ran over Neville was about the fifth car from the engine. The front part of the engine was about three or four car lengths past the shanty." Witness said: "I said, to the best of my remembrance and knowledge, it came to a standstill and started up again." What he heard Neville say as to the accident was said to Mr. Cain. It might have been said to some others. "He gave no other explanations as to the accident. Two wheels run over him, I think."

T. S. Martindale, plaintiff's witness, testified: "That he was receiving clerk for the National Stock Yards, October, 1895, and knew about the accident to Neville, which happened in the National Stock Yards on the M., K. & T. train delivered to us by the Merchants' Terminal Bridge Company. It was about dawn in the morning, not later than 4 o'clock. It was dark when the train came. I was inside of the little shanty that we use, when the train pulled up, — office they call it, but it is a shanty proper. When the train pulled up, the conductor came in and delivered the bills. My duties were to examine the bills, and to see in what department the cattle were to be unloaded, and then order them unloaded, — to see that they were properly yarded, and that the...