Evans v. Wabash R. Co.

• Citation: 178 Mo. 508,77 S.W. 515
• Court: Missouri Supreme Court
• Decision Date: 30 June 1903
• Parties: EVANS v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>

77 S.W. 515

178 Mo. 508

EVANS v. WABASH R. CO.^*

Supreme Court of Missouri, Division No. 2.

June 30, 1903.

MASTER AND SERVANT — SECTIONMAN — INJURY BY APPROACHING TRAIN — CONTRIBUTORY NEGLIGENCE — DOCTRINE OF DISCOVERED PERIL — APPLICABILITY.

1. An experienced sectionman, 45 years old, and with good eyesight and hearing, was working by the side of the track at a point of safety, while a train running 30 or 40 miles an hour

was approaching from the rear. He had an unobstructed view of the track, had he looked, for at least 1½ miles. The wind was blowing from about the direction the train was coming, and when about 300 yards away the train whistled, and an automatic bell ringer was started. A station whistle, and then a short whistle, were afterwards given, and lastly, when about 300 or 400 feet from decedent, a danger signal of four short, quick blasts. Apparently oblivious of the train, decedent crossed the track immediately in front of it and was killed. He knew that the train was due at that hour. Held, that decedent was guilty of contributory negligence.

2. The doctrine of discovered peril does not apply in the case of sectionmen discovered on a railroad track by the engineer of an approaching locomotive, until he has good reason to believe that they will not get out of the way.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action by Alice Evans against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Geo. S. Grover, for appellant. Meservy, Pierce & German, for respondent.

BURGESS, J.

This is an action under the damage act in which plaintiff recovered judgment against the defendant for $5,000 damages for negligently running its train of cars over and killing her husband, James Evans. Defendant appeals.

The accident occurred in the town of Randolph, Clay county, on the 15th day of October, 1898. During the last four or five years prior to the death of deceased he had worked several times as a laborer for defendant on its road in said county. He was an active man, 45 years of age, at the time of his death, with good eyesight and hearing. On the day he was killed he was engaged in cutting weeds along the railroad track at a point on or near a road crossing about 100 to 125 yards east of the Wabash depot, in said town. He was struck by a locomotive, to which was attached a meat train, running at the rate of about 30 or 40 miles an hour. Evans was one of a force of sectionmen composed of Charles McCain, foreman, Jeff Prewett, John Tyler, Jesse Endicott, and himself. At the point where Evans was killed the railroad track runs almost due east and west, and the sectionmen were employed in cutting the weeds on it and a few feet on each side of it. The track of the railroad is parallel with and about six or eight feet north of the north rail of the Wabash track. Jeff Prewett was ahead, and was a short distance east of the crossing; Evans, the deceased, came next. Both Prewett and Evans were on the north side of the track. Deceased was working toward the east, with his back to the west, and at the time he was struck was just north of the rail — between the north end of the ties and the rail — at a point either on or very close to a road crossing. McCain, Tyler, and Endicott were all on the south side of the track. The train was running east, and the track was nearly level and straight for about a mile west, so that the men at work were in full view of the engineer and fireman for a distance more than a mile west of the Randolph station. At that time a regular fast freight train, east bound, which was not scheduled to stop at Randolph station, passed that place at 2:12 in the afternoon. This train had been running on that time card for a long time prior to October 15, 1898, and was well known to the people of Randolph and vicinity as the "meat train." The train was exactly on time on October 15, 1898. The train whistled at the whistling post, a quarter of a mile west of Randolph station, and the bell-ringer on the engine, an automatic contrivance, was started at the time the whistle was blown, so that the bell rang from the whistling post until the train passed Randolph station. It was a clear day, with the wind blowing from the southwest. The train contained 28 loaded cars, and was running about 30 miles an hour, and its speed was not slackened as it approached Randolph station, as it was not scheduled to stop there. At that point the track of the Hannibal & St. Joseph Railroad is about 10 feet west of the defendant's track. The defendant's track, between its rails, is 4 feet 8½ inches wide. The front end of the engine in use that day was 9 feet and 2 inches wide, so that the engine projected outside each rail 1½ to 2 feet. After whistling at the post the engineer then in charge of defendant's engine whistled one long blast as a station signal, and then gave a short whistle, in answer to a signal from the conductor, not to stop at the station. Seeing a group of men working close to the track near the crossing just west of Randolph station, the engineer, when about 300 or 400 feet west of the crossing, whistled again — a danger or warning signal — four short, quick blasts. The men, as the engineer saw them, separated then, some on one side of the track and some on the other. Both the engineer and the fireman were in their proper places on the engine all the way from the whistling post up to and past Randolph station. After coming within 60 feet of the men, the engineer's view of them was shut off by the front part of his engine. Evans was never seen by either the engineer or the fireman, in a position of either danger or peril, prior to the accident. In fact, they did not know that any one had been struck by the engine until after they had reached Lexington Junction, some distance east of Randolph station. Even after receiving a danger signal, if one had been given, as it was not, it would not have been possible to have stopped the train in less than a quarter of a mile after receiving and understanding such signal. All the eyewitnesses to the accident agree that Evans never paid the slightest attention to the approach of the train, though it was in plain view for at least a mile west of Randolph station. Some of them, including Endicott, say that he was stooping over cutting weeds with a shovel, within two feet of defendant's track, looking east, all the time the train was in sight, and until it struck him, and that he never changed his position or looked up during that time, and that he was struck and instantly killed by the front part of the engine. Prewett, however, who was about 28 feet from Evans, on the same side of the track with him, says that he (Prewett) both saw and heard the approaching train, and kept out of its way, while Evans walked east on the ends of the ties on the Hannibal track, until the train was within 60 or 75 feet from him, and then started across directly in front of it. The foreman, McCain, and Prewett each shouted a warning to Evans in a loud voice. Evans paid no attention to these warning cries, but stepped on the defendant's track, and...