Scullin v. Wabash R. Co.

• Citation: 83 S.W. 760,184 Mo. 695
• Court: United States State Supreme Court of Missouri
• Decision Date: 02 July 1904
• Parties: SCULLIN v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 760

184 Mo. 695

SCULLIN v. WABASH R. CO.^*

Supreme Court of Missouri, Division No. 2.

July 2, 1904.

RAILROADS — PERSONAL INJURIES — NEGLIGENCE — JURY QUESTION — ARGUMENT OF COUNSEL — DAMAGES — EXCESSIVENESS.

1. In an action against a railroad for personal injuries from being struck by a train while walking near the defendant's track on a public highway, evidence examined, and whether the defendant was guilty of negligence in failing to avert the injury held question for jury.

2. A statement by counsel for plaintiff in his argument that when the defendant filed its first answer it admitted what plaintiff claimed — that he was within a foot of the track — and that it did not withdraw that admission until it found out it was not on its private property, but at a public highway, where it had not the right to run people down without looking for them, as it would in its private way, by which "I mean to say on their own right of way people are trespassers, but on a public highway you and I have just as much right as the railway company, and they are bound to look out for us," was not such a violation of the rules of legitimate argument as amounted to error; the defendant's answer, referred to, having been introduced in evidence.

3. A statement of counsel for plaintiff in his argument that the defendant could have gone to the scene of the accident, and with the same

train have determined within what distance they could have stopped the train, and brought their witnesses and had them swear to it, was not such a violation of legitimate argument as amounted to error.

4. Where it appeared that plaintiff was a young man, who had not reached 21 years of age, and lost both of his legs by the injury, and also suffered a terrible wound in his back, a verdict for $20,000 was not excessive.

Appeal from St. Louis Circuit Court; Jacob Kein, Judge.

Action by William R. Scullin, by his next friend, James Scullin, against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

John F. Shepley and Douglas W. Robert, for appellant. Geo. S. Grover and Boyle, Priest & Lehmann, for respondent.

GANTT, P. J.

This is an appeal from an order of the circuit court of St. Louis granting the defendant a new trial. The action was for damages for personal injuries sustained by the plaintiff, and alleged to have been caused by the negligence of defendant. The evidence was substantially as follows: About 9:30 in the morning of May 11, 1899, the plaintiff, a young man, was in the employment of the Wiggins Ferry Company, in the city of St. Louis. He started to walk from Mound street, in the northern part of the city, south to Market street, a distance of some 20 blocks, for the purpose of reaching the landing of a ferryboat which was plying between the foot of Market street and the United States gunboat Nashville, which was at that time anchored out in the channel of the Mississippi river near the Illinois shore. His course was down the levee, or front street, a public highway, and along a path ordinarily used by pedestrians on that part of the levee, which ran parallel with and about a foot west of the western rail of the defendant railroad company's track, and this course he held until he was struck by defendant's train near the foot of Franklin avenue, which is about 10 blocks south of Mound street. On his way down he spoke to defendant's watchman at Biddle street, which latter street is about 1,600 to 1,800 feet north of Franklin avenue. He never changed his position with reference to the west rail of defendant's track, which is laid longitudinally along and on the surface of the levee between Mound street and Franklin avenue. He walked close to the track all the way down, and had been so walking about 15 minutes when he was struck. He testified he did not look backward for the train, but was listening. He had his ears open, and could have heard a bell or whistle if there had been any signal. The idea of a train being near him did not enter his head. As a usual thing, engines, when moving about the yards where he worked, rang a bell, but he didn't know about their blowing whistles. A passenger train of the defendant backed down over this track of the defendant towards the south, and when plaintiff was 40 or 50 yards north of the foot of Franklin street it overtook him, and the southern end of the rear car struck him in the back, knocking him down, and in a position where both the wheels of the southern truck of said car passed over his legs, crushing and mangling both of them, so that it was necessary to amputate the left leg above the knee and the right one just above the ankle. He received a deep wound in the back, which did not heal for two months. The evidence on the part of the plaintiff tended to prove that no whistle was blown, or bell rung, or other signal given of the approach of the train, and he heard no sound of the train approaching. When the train stopped, the plaintiff was found lying from six to eight feet north of the northern wheel of the southern truck of the car. The distance from the extreme southern end of the car to the northern edge of the northern wheel of the truck which passed over him was fifteen feet and seven inches. He was taken from under the car, and put upon a couch on the levee, where he remained an hour, waiting for an ambulance to take him to the hospital where the amputation was performed. He remained in bed two months. Since his recovery he can only walk with artificial legs, and cannot go faster than a walk, or ascend or descend steps more than one step at a time or walk with any certainty. The Wabash train which struck him was the regular south-bound morning train, and was on time that morning. The engine was at the north end. The testimony on the part of the defendant tended to prove that the engine bell was ringing, and that the engineer and fireman were at their places on the engine. This train was composed of a small passenger eight-wheel locomotive, weighing about 30 to 32½ tons, a combination baggage car and smoker, and a passenger coach. The cars and locomotive were equipped with air brakes operated through the same pipe. The train was moving from six to eight miles an hour. The day was fair, and the track dry. The train could be controlled from the engine or from the rear platform of the rear car with a device known as a "tail-hose." The end of the hose was conveniently placed, as was the brake, so that either hose or brake could be quickly used by the conductor in an emergency. At the time of the accident and prior thereto the conductor of the train stood on the south platform all the way from Mound street to the place of the accident. There was a whistle attached to the hose, and the evidence for defendant tended to prove that the conductor held the air hose and brake in his hand that morning all the way from Mound street down to the point of the accident, and that the conductor whistled three times with the air hose, and, after crossing the Wiggins Ferry tracks, he whistled two long and two short blasts. The train then ran 200 feet, and the same whistle was repeated by the conductor, and he repeated it once more before the accident.

John Watt, a witnss for plaintiff, testified that he had been a locomotive engineer on the Illinois Central for nine years, and that such a train as that described by the witness in this case, upon such a grade, upon such a day, and running at such a speed, could be stopped, if fully loaded with passengers, within ten or twelve feet, or, if empty, within about one foot less space. On the rear platform with Mr. Maroney, the conductor, was Richard T. Blow, a passenger. Blow stood on the west side of the platform and Maroney on the east. The track from Biddle street to the point where the accident happened is almost straight, and its entire length can be seen from a point between the rails at Biddle street down to the Eads Bridge, three blocks south of Franklin avenue. On the day of this most unfortunate occurrence the gunboat Nashville was lying in the harbor of St. Louis, and excited much interest. It seems that almost every one on the train was trying to catch sight of it, and various witnesses testified that the conductor, like the others, was occupied in looking at it, and thus had his attention taken from the track in front of him, near which plaintiff was walking — so near, according to his own and the evidence of other witnesses, that he was sure to be struck if he was not warned, and did not move further west as he walked. On the part of the defendant the conductor testified that when he first saw plaintiff, plaintiff was 600 or 700 feet south of the rear end of the track, walking south, on a line 3 or 4 feet west of the west rail of the Wabash track; that he then sounded the alarm whistle or hose whistle; that he was not then near enough to the track to be in danger from the train; that this whistle was sounded three times, four whistles at a time; that plaintiff did not change his course until the train had come within 12 or 14 feet of him, when he stepped toward the track and into a position where he would necessarily be struck, and, seeing this, the conductor applied all the air, and endeavored to reach down and catch the plaintiff, but failed, and the train struck him and ran over him. On this point there is sharp and well-defined conflict between the plaintiff and his witnesses on one side and the conductor on the other. Plaintiff and his witnesses say he was walking all of this 600 feet within a foot of the west rail. On this point also the plaintiff read in evidence the original answer of the defendant, in which the defendant alleged "that on the 11th day of May, 1899, William R. Scullin was walking south about one foot west of and along the side of the west rail...