Yarnall v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 30 April 1882
• Court: Missouri Supreme Court
• Parties: YARNALL v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

75 Mo. 575

YARNALL

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.

REVERSED.

Wells H. Blodgett for appellant.

J. E. Black, James W. Black, James L. Farris and Adam J. Barr for respondent.

RAY, J.

This action was commenced by plaintiff, as the widow of Richard Yarnall, under the 2nd section of the Damage Act, to recover the statutory penalty of $5,000 for causing the death of her husband.

The material parts of the petition are as follows, towit: That defendant was a railway corporation duly organized under the laws of the State of Missouri; that defendant was, on the 2nd day of July, 1875, owning, controlling and operating a railroad known as the St. Joseph & St. Louis Railroad, which began at a point in Ray county, opposite the city Lexington, and extended through the county of Ray to the city of St. Joseph. The petition also contained the following averments: “That on the 2nd day of July, 1875, defendant, by its agents and employes, negligently and unskillfully did back one of its locomotives, with a tender in advance, from Richmond to Richmond and Lexington Junction, in Ray county; that, by reason of negligence and unskillfulness of the agents and employes of defendant, at the time aforesaid, and at a point on the railroad aforesaid about one-half mile north of the Richmond and Lexington Junction, in Ray county, in running its said locomotive and tender as aforesaid, the said Richard Yarnall was struck, run upon and over by said tender and locomotive, and bruised, wounded and mangled and instantly killed thereby.” The petition also averred that the plaintiff was the widow of Richard Yarnall, deceased, and prayed for judgment in the sum of $5,000.

The defendant, in its answer, denied that it did, on or about the 2nd day of July, 1875, by its agents, servants or otherwise, negligently or unskillfully back a locomotive and tender from Richmond to Richmond and Lexington Junction in Ray county; denied that, by reason of negligence or unskillfulness on the part of its agents or employes, the said Richard Yarnall was, at a point about a half mile north of said Junction, run upon or over by defendant's locomotive or tender and thereby killed. For other and further answer, defendant stated that deceased was, at the time of his death, wrongfully upon defendant's track; that he was not in the exercise of prudence to avoid danger; that the point where he was alleged to have been killed was in the country, and not in the street of a town or city, or at the crossing of a public highway; that said Yarnall was guilty of such negligence as was the proximate cause of his death; and denied that the death of Yarnall was caused by his being run over by any locomotive or tender of defendant on its railroad.

The replication denied the new matter set up in the answer.

The testimony, together with the admissions made upon the trial, show that in the year 1875 defendant was operating a railroad commencing at a point in Ray county known as North Lexington, and extending in a northwesterly direction to the city of St. Joseph in Buchanan county; that on the line of the above named railroad and some nine or ten miles northwest of North Lexington, is situated the town of Richmond in Ray county, and that about midway between North Lexington and Richmond the railroad to St. Joseph is crossed by the main line of defendant's railroad, which extends from St. Louis to Kansas City. At the point where said tracks cross each other there is a depot and a village known as Richmond and Lexington Junction. North of Richmond and Lexington Junction, some two and a half miles up the track, in the direction of Richmond, there were some coal mines, in which Richard Yarnall, the deceased, worked as a miner, and near which he resided and kept a boarding house.

From the testimony introduced on both sides at the trial, it appears that during the afternoon of July 2nd, 1875, the deceased was about the Junction drinking beer, and that toward evening he started up the railroad track, toward his home, in a state of intoxication, carrying on his back a sack containing some meat and groceries. As he started off up the track toward home, he was seen to stagger, and before it got fully dark he was seen for the last time half a mile up from the Junction, still going in a northerly direction, and at that time he seemed to be having some trouble in keeping the sack on his shoulder. On the same night after nine o'clock, the dead body of Yarnall was found between the rails of the railroad track, half a mile north of where he was last seen. The body when found had the appearance of having been run over by the cars, and was lying between the rails, near where the defendant's track was at that time crossed by a sort of neighborhood road leading in the direction of a mill and the coal mines. From the blood and other marks upon the ground, ties and iron rails, it was evident that the deceased had been struck some distance north of the crossing, and that the body had been dragged or rolled along down to the crossing, where it was found.

In backing down, the head-light at the front of the engine was burning brightly. The gauge lights in the cab were lighted and a watchman sat on the rear end of the tender, holding in his hand as a signal, what is known as a white light, or common railroad lantern. The testimony shows that the rays reflected to the sides of the track from the head-light of the engine, the gauge lights in the cab and the lantern at the rear, could each be seen by a person upon the track (if he looked) a quarter of a mile; and that the noise of an engine and tender running on a track in the night-time, could be heard a much greater distance.

The circumstances all indicated that the deceased was struck by an engine or train going south from Richmond to the Junction. Blood and brains were to be seen upon the rails and upon some piles of ties which were near the track, but no blood or marks of any kind could be found upon the wheels or other portions of the engine that was backed down on the night in question from Richmond to the Junction. No one upon that engine saw anything upon the track, felt any unusual jar, or was aware of an injury to any person until after the body was discovered, and they learned of the accident hours afterward from persons at the Junction. It was not only established by the evidence of witnesses introduced by both parties, that the deceased was drunk when he left the Junction and started up the railroad track toward his home on the evening of his death; but it was also shown that he was in the habit of getting drunk and sitting down or lying down upon the street, sidewalk or railroad track, wherever he might, at the time, happen to be.

At the close of plaintiff's testimony, defendant interposed a demurrer to the evidence, but the court overruled it and defendant excepted. At the close of the whole testimony the court, over defendant's objection, gave the following instructions for the plaintiff:

1. If the jury believe from the evidence that, on the 2nd day of July, 1875, Richard Yarnall was run over and killed by the locomotive and tender of defendant upon the St. Louis & St. Joseph Railroad, while said railroad was run and operated by defendant, in Ray county, by reason of negligence or unskillfulness of the agents, servants or empioyes of defendant in running and managing said locomotive and tender, and further find that plaintiff is the widow of said Yarnall, then the verdict should be for the plaintiff, unless Yarnall was at the time guilty of negligence which contributed to or caused his death.

2. Although the jury believe from the evidence that Yarnall was guilty of negligence at the time he was killed, by being upon the railroad of defendant; yet if they further believe that the agents, servants or employes of defendant, by the exercise of care and skill, could have prevented the killing of said Yarnall, and that his death was caused by the carelessness, negligence or unskillfulness of defendant's agents, servants or employes, and that plaintiff is his widow, the verdict should be for plaintiff.

3. If the jury find the issues for plaintiff, they will assess the damages at $5,000.

The court gave the following instructions for defendant, to-wit:

1. Defendant had the right to the exclusive use of its own railway track, to run and operate its cars, engines and locomotives thereon at any time, either in the day or night-time, and either backwards or forwards, and if the jury find from the evidence that the employes of defendant used ordinary care in backing its engine and tender at the time, and along the track where the injury complained of occurred, then the jury must find for defendant.

2. The burden of proof is on the plaintiff, and to entitle her to recover ...