Schmidt v. Missouri Pac. Ry. Co.

Decision Date25 October 1905
Citation90 S.W. 136,191 Mo. 215
PartiesSCHMIDT v. MISSOURI PAC. RY. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Cole County; James E. Hazell, Judge.

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

M. L. Clardy and Wm. S. Skirk, for appellant. Silver & Brown, for respondent.

GANTT, J.

This is an action for statutory damages for the killing of George E. Schmidt by a train of the Missouri Pacific Railway Company at the crossing in Jefferson City, Mo. The grounds of negligence alleged in the petition are four: First, that the defendant ran its locomotive and train of cars, which struck and killed the plaintiff's husband, at an immoderate and excessive rate of speed over the public crossing, upon which crossing the plaintiff's husband was struck and killed; second, that the defendant ran its locomotive and train of cars in excess of five miles per hour, in violation of the city ordinance of said city; third, that the defendant failed to keep a proper lookout for pedestrians at the crossing on which plaintiff's husband was struck; fourth, that the defendant failed to so manage and control its said train, and the speed thereof, as to stop said train in time to prevent injury to plaintiff's husband. The answer denied each and every allegation of the petition, and pleaded contributory negligence on the part of the plaintiff's husband. The trial resulted in a verdict and judgment for the plaintiff for the statutory sum of $5,000. Motions for new trial and in arrest of judgment were duly filed and overruled, and the defendant appeals to this court.

The evidence on behalf of the plaintiff tended to prove the following facts: That at a point of about 118 feet east of the bridge pier of the Missouri river bridge, in Jefferson City, the defendant company has four tracks, namely, two side tracks south of the main track, then a main track, and then another side track north of the main track; that it is about 18 or 20 feet from the northernmost of the south side tracks to the main track; that at the place here referred to the defendant had, for some time prior to the death of plaintiff's husband, maintained a crossing for vehicles and pedestrians; and that this crossing led down from Bolivar street on the south over defendant's track to a landing on the Missouri river. What is called "Bolivar Street Road" branches off from Bolivar street proper on the east side of the retaining wall or approach to the bridge, leaving the street about 200 feet south of the bridge proper, and veering to the east until it crosses the railroad tracks 118 feet east of the bridge. At the point where the deceased was struck the wagon road, known as the "Bolivar Road," is about 90 feet east of the east line of Bolivar street. A plat introduced in evidence, and which accompanies this opinion, shows a dotted line from the south end of the ties to the south track, which has a line of vision looking westward past the bridge pier. From this point at the south end of the ties of the south track one can look west, past the bridge pier, and see a train coming from the west 250 feet, and, when going north over this crossing towards the main track, could see still further west as he moves north. As to these facts there seems to be no conflict. The evidence of the plaintiff tended further to show that shortly after 2 o'clock p. m. of August 26, 1902, Mr. George Schmidt, plaintiff's husband, was observed by Mr. Gustave Reinke, the bridge tender of the Missouri river bridge at the tollhouse at the bridge, coming down Bolivar street from the south towards the bridge. Reinke saw Mr. Schmidt coming, probably 150 yards away, and thought he was coming to the tollhouse to speak to him (Reinke); but, when the deceased reached the south end of the retaining wall, he left Bolivar street proper and went down the wagon road, known in the evidence as "Bolivar Street Road," that runs across the railway tracks at the crossing above mentioned. Mr. Schmidt continued down this wagon road, and, while he was doing so, an omnibus came across the bridge, and Reinke became engaged in collecting the toll, and when he went into the tollhouse with his money and tickets he heard the whistle of the train which killed the deceased, and also heard an alarm whistle almost under the bridge. Happening to see the old man, he ran out of the tollhouse across the roadway of the bridge to the east wall thereof, and looked down east from the bridge to this Bolivar street crossing. By this time, he says, Mr. Schmidt had approached a point within a step or two of the main line. He had already crossed the two south side tracks, walking diagonally, and was close to the main track. Reinke waived his hand at him, trying to attract his attention. Mr. Schmidt could not hear him, as Reinke knew. Mr. Schmidt was walking with a cane, and looking a little east in the direction of a boat on the river — a little east of north. Reinke did not see him look up towards the west, the direction from which the train was coming, at all. The deceased was not looking towards the west when he stepped on the main track. When in the middle of the track, and just as the engine struck him, it seemed to Reinke as if Mr. Schmidt wanted to look — as though he felt a jar or something — but the engine struck him before he could look. The evidence tended to show that the train was moving at a rate of over 25 or 30 miles an hour; that the body of the deceased was hurled by the collision about 100 feet. No other witness for the plaintiff discloses the movements of the deceased prior to and just at the time of the happening of the catastrophe.

For the defendant the engineer, Allen Taylor, testified that his train was running, at the time it struck the deceased, somewhere between 25 or 30 miles an hour; that he could see the crossing on which deceased was struck 250 yards before he reached it; that he was at his place on his locomotive, looking forward at the crossing and on the track to see if there was anything in the way; that, when witness first saw the deceased, he was 15 or 18 feet from the track; that the train was then 175 or 180 feet from the deceased, and that deceased was not looking either way; he was looking down, shaking his head, and appeared to be feeble; had his head down as though he was looking on the ground in front of him; that, if his train had been running at five miles an hour, he could have stopped it within 25 yards; that, when he first saw Schmidt approaching the track, he blew the alarm whistle three or four sharp blasts; he had already applied the brake as he always did coming around the bluff at that point; that his engine was close onto Schmidt before he became convinced that he was going to step on the track; that after he gave the alarm whistles two steps brought the deceased in danger, and the engineer then made every effort to stop; that the old man stepped right in front of the engine, and he and the engine met on the track. There was evidence that the train could have been stopped, if running at a rate of five miles an hour, in a distance of 45 to 60 feet. Swayze, the fireman, testified that he saw the deceased before he was struck; that the deceased was then about two or three steps from the track, walking towards it; was looking down on the ground ahead of him. Otto Fleming testified he was sitting on the north steps of the State Capitol; that he heard the whistle when the train was beyond the bridge as it was coming from the west around the bluff; that, when the train was about under the bridge, he heard a short danger signal; that he noticed the deceased coming down the roadway leading to the crossing, and saw him pass over the side tracks; that he then walked over between the main line and the side track and stopped, and then stepped over on the ties with his right foot, and then stepped to about the middle of the tracks with his left foot, and was struck by the train. H. D. Chambers testified for the defendant that he saw the deceased about 20 feet from the track, going right down towards the crossing; that witness' attention was withdrawn from the deceased until he heard the alarm whistle, when he looked again, and at this time the deceased was stepping right over the track when the engineer blew his whistle.

The ordinance of the city of Jefferson, prohibiting a locomotive, engine, passenger or freight car, upon or along any railroad track within the limits of said city, to run at a greater rate of speed than five miles an hour, was...

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