Sharp v. Missouri Pac. Ry. Co.

• Decision Date: 26 March 1901
• Citation: 61 S.W. 829,161 Mo. 214
• Parties: SHARP v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

61 S.W. 829

161 Mo. 214

SHARP v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 26, 1901.

RAILROADS — CONTRIBUTORY NEGLIGENCE — INJURIES — EMPLOYE — SECTION HANDS — SIGNALS — SPEED OF TRAIN — WILLFUL OR WANTON INJURY.

1. Plaintiff's decedent was killed by a train which he knew would pass in a few minutes. As the train approached he was standing outside the rail, working, leaning over so that his head was close to the track. The train, which was running 12 or 15 miles an hour, was visible for over a quarter of a mile. It was customary for the section men to work on the track until the engine got very close, so that no warning was given deceased until the engine was within 70 or 75 feet, when his companions called and the engineer blew the whistle. Had deceased straightened up, he would have been out of danger; but he remained in the same stooping posture, and was struck on the head by the pilot beam. Held, that deceased was guilty of contributory negligence as a matter of law, so as to preclude a recovery on the ground that defendant was negligent.

2. The engineer was not guilty of such willful, wanton, or reckless disregard of human life as to render defendant liable notwithstanding the deceased's contributory negligence.

In banc. Appeal from circuit court, Jackson county; Charles L. Dobson, Judge.

Action by Margaret Sharp against the Missouri Pacific Railway Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

Elijah Robinson, for appellant. Teasdale, Ingraham & Cowherd, for respondent.

BRACE, P. J.

This is an appeal from a judgment of the Jackson circuit court in favor of the plaintiff for the sum of $5,000 damages for the death of her husband, William Sharp, who on the 2d day of November, 1895, was struck by one of the defendant's trains and killed, and whose death, it is alleged in the petition, was caused by the negligence of defendant's servants, "in this, namely: First. The agents, servants, and employés of defendant in charge of said train negligently, carelessly, and unskillfully failed to give reasonable and sufficient notice of the approach of said train by blowing the whistle or ringing the bell, or by otherwise warning the deceased of the approach of the train. Second. The agents, servants and employés of defendant in charge of said train negligently, carelessly, and unskillfully failed to stop said train after they knew, or might have known by the exercise of ordinary care, of the danger in which said deceased was placed. Third. That the agents, servants, and employés of defendant in charge of said train negligently, carelessly, and unskillfully failed to stop said train in time to avoid injuring the deceased. Fourth. The agents, servants, and employés of said defendant in charge of said train negligently, carelessly, and unskillfully failed to keep watch along the track in the direction in which the train was moving towards said deceased." The answer was a general denial and a plea of contributory negligence. At the close of plaintiff's evidence, defendant demurred thereto, and at the close of all the evidence renewed its demurrer. The refusal of the court to sustain the demurrer at either stage is assigned as error, and this presents the crucial question in the case. The material evidence in the case is as follows:

Plaintiff's Evidence.

W. B. Cooper testified: "I live at Lee's Summit, and on November 2, 1895, I was in the employ of the Missouri Pacific Railway Company at that place, as a section laborer. William Sharp was also a section laborer, working in the same gang with me. At that time there were five laborers and the foreman in the gang, — J. M. Green, foreman, F. A. Radford, Abner Keller, James Himes, and myself. On the day Sharp was killed we were working in pairs, putting in ties. In doing that we were two together, but Sharp was working alone. He was the regular track walker, and would go over the track every day, and he had gone over it that morning. He got back from going over the track between eleven and twelve o'clock that forenoon, and went to work with the rest of us. Going through Lee's Summit, the track runs east of south and west of north. The place where we were working there that morning is southeast of the main part of the town, — southeast of the depot. At the time Sharp was killed we were between half and three-quarters of a mile southeast from the depot. The nearest crossing that we were to was what we called the `School Crossing'; that is, the crossing that crosses from the school house there by the park, which is a public crossing. We were between a quarter and a half a mile from that crossing, which was between us and the town. From where Sharp was killed to the first crossing southeast was fully a mile and a half. The track from where Sharp was killed, easterly, is level for about three-quarters of a mile, and is absolutely straight. The track runs alongside of the park, and we were about 120 feet south of the park fence. The baseball grounds lie south of the park, and also extend up to the railroad track. People use the track occasionally in going out to the baseball grounds or the park. I have noticed a good many people walking out that way. * * * I had been working just northwest of Mr. Sharp, and just before he was killed we took our tools, and moved down the track southeast of him. About the time I started to move from where I had been working northwest of him I noticed the train approaching from the southeast. I suppose it was about a quarter of a mile distant. I didn't hear it before I saw it. When I saw the train I was walking in the direction that it was coming from, and I saw it coming, and kept walking along the track until it got pretty close to me, when I stepped off the track to one side to let it pass me. I stood there to one side of the track, waiting for the train to pass me; for I saw that it was too close to go to work again. The place where I stepped off was about where I was going to go to work again, and so I had to stand there until it passed, and I kept my eye on the train, noticing it as it was coming up, until it was right close to me, and, when it was right about beside me, I turned my head a little in the direction in which the train was going, and saw Mr. Sharp standing close to the track, on the south side of the south rail. We had taken out an old tie, and he was standing down in the bed where the old tie had been, and was working, cleaning it out, so that a new tie could be put in; but he was standing outside of the rail, — standing with his feet outside of the rail on the south side, — but stooping over the rail, working on the inside between the rails, — working with a pick. I don't remember whether he was in that position when I passed him, but he was in that position when I turned my head and noticed him. Mr. Keller was working with me, and we had just put in a tie northwest of where Sharp was working, and had gone to a point southeast of him to put in another. I think the distance from Sharp to the point southeast of him, where we went to put in another tie, was about fifteen feet. As the train approached, I was standing on the south side of the track, in between the rails of the side track. I don't exactly recollect where Mr. Keller was standing just at that time. He and I were the nearest people to where Mr. Sharp was working at the time he was killed. I never noticed whether the train was puffing when I first saw it approaching, but it was not puffing, as if pulling hard, when it got close to me. The wind was blowing about due south, kind of diagonally across the track. It was not very strong, — just a moderate wind. As the train approached, I had my face towards it, and I gradually turned around, and, when I got turned far enough, I saw Mr. Sharp still working there, paying no attention, and I saw it was getting pretty close to me, and I said, `Look out!' I didn't call his name, but, as it got closer right away, I said, `Look out, Dad!' for we all called him `Dad' on the road there; and about that time it was right up to him, and hit him. From the time I had passed Mr. Sharp he hadn't changed his position any way. He was standing there in the same way right up to the time the train struck him. I didn't see any signal or hear any until they blew the whistle, — until the whistle blew for danger. I can't say exactly how far the train was from Mr. Sharp when the whistle blew, but I think it was about two rail lengths, or sixty feet, from him. It might have been more. My face was towards the train as it came down the track. I don't know as I was standing square this way towards the track, or whether I was standing square this way; but whatever way I was standing I was situated so I could see the train, and I was watching it as it came up. I could not say exactly how close the train was to me before my attention was directed to Mr. Sharp, but I know it was very close, — right up to me, almost. It was getting very close, I know that. It was about two rail lengths from me when I first hollered, but Sharp didn't do anything to indicate that he heard me when I hollered the first time. The second time I hollered was just when the train was right to me, and I can't say that he heard me. I just noticed him move, and that was all, and it seemed as if the train struck him almost immediately. The whistle blew before I said, `Look out! Look out, Dad!' I don't remember whether the whistle blew before I hollered the first time. I didn't notice the engineer at the time the accident occurred, but had noticed him when the train was approaching, about two hundred yards distant. He was either standing or sitting at his place in the cab. The engineer could see half or three-quarters of a mile along the track. I can't tell how far the engine knocked Sharp when it struck him, but I suppose ten or twelve feet. I suppose it was two hundred yards northwest from where Sharp was struck to where the...