Ahnefeld v. Wabash R. Co.

Citation212 Mo. 280,111 S.W. 95
PartiesAHNEFELD v. WABASH R. CO.
Decision Date31 March 1908
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Action by Margareth Ahnefeld against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was instituted by plaintiff in the circuit court of Carroll county to recover $5,000, under the second section of the damage act, for the death of her husband, Carl Ahnefeld, who was struck and killed by a work train on defendant's railroad, near Carrollton, Mo., on the 18th day of June, 1904. From a judgment in favor of plaintiff, defendant appeals.

The amended petition alleged that deceased at the time he was killed was walking in an easterly direction on defendant's track, within its swtch limits, at about one-quarter of a mile east of its depot at Carrollton; that the track at the point of the accident, and for a long distance in either direction, was level and practically straight, "which was uninclosed, and which for many years pedestrians to and from the said town of Carrollton and the said station and depot of defendant at said town of Carrollton had been accustomed to use as a road or footpath by the forbearance and tacit consent of the defendant"; that deceased was unaware of the near and dangerous approach of said train, and that defendant's agents and servants in charge of the train negligently failed to either ring the bell, sound the whistle, or give any other signal by which plaintiff's husband might be warned of the near and dangerous approach of said train; and that defendant's agents and servants in charge of the train either saw deceased in peril, or could have seen him in peril had they been on the lookout for him, in time to have averted his death, but neglected to do so. The answer, after admitting the incorporation of the defendant, and that plaintiff was the widow of the deceased, and denying the other allegations of the petition, charged that the death of the deceased, who was not connected with or employed upon the railroad, was solely the result of his own negligence in walking on the track of the defendant at a point where the same was not laid upon or along a publicly traveled road or street, or over a highway crossing, without looking and listening for the approach of trains, in violation of section 1105 of the Revised Statutes of Missouri (Ann. St. 1906, p. 945). The reply denied generally the new matter contained in the answer.

The facts developed at the trial on behalf of the plaintiff were substantially as follows: The defendant's depot is located about a mile and a half south of the business part of Carrollton, and about a half a mile south of the south limits of that corporation The main track of the railroad runs in an easterly and westerly direction and along the south side of the depot. A switch or side track leads off from the main track at a point about one-quarter of a mile east of the depot, and extends westward to and along the north side of the depot, and beyond to a connection with the main track. The distance between this side track and the main track, where they cross the Rock road hereafter referred to, is about 50 feet. This siding defined the north boundary of defendant's switch yard. A similar siding south of the main track formed the south boundary. The water tank stood near the north side of the main track, about 200 feet east of the depot. What is called the Rock or Avenue road, which extends directly south from Carrollton, passed over the station grounds between the depot and water tank at about equal distance from each other. A small building used as a grain or coal office stood about 60 feet immediately north of the water tank, just north of the north side of the track, and about 25 or 50 feet east of the Rock road. About 60 feet east of this grain or coal office a grain elevator was located on the same side track. About 100 feet north of the north siding a road running east and west intersected the Rock or Avenue road. Bode's store was on the corner, being immediately north of the east and west road, and immediately east of the Rock or Avenue road. Some racks for hitching horses stood on the south side of the east and west road, a short distance southeast of the store. Along these two roads and north of defendant's right of way about 25 buildings were located, forming a kind of a village, which the witnesses called South Carrollton. The switch yard was not fenced, but the right of way extending east from the switch yard was inclosed by a fence and cattle guards. Deceased was a farmer, who resided three or four miles west from defendant's depot. His age was estimated by one witness as being about 50 years. On the day of the accident a primary election was being held in the little building which was used as a grain or coal office. The accident occurred about 2 o'clock in the afternoon. The movements of deceased and the train were described by plaintiff's witnesses as follows:

Witness Phil Huff testified: "I saw Carl Ahnefeld that day. I saw him as he came riding up on the north side of this office. He rode up kind of on the north side and a little east, where the hitch rack was. I afterwards looked out the window on the south, and saw him going around the elevator, going in a southeast direction at the time, on the railroad track. Shortly after he passed the office I saw a train standing at the depot. It was a train of flat cars. The engine was reversed. The tender was headed east. It was a large engine, and had a large tender, a high tender. I think it was known as a work train or `extra.' I did not hear any signals, if any were given."

Witness Ed Ferguson testified: "Saw Mr. Ahnefeld that day. He rode up there, and I seen him as he went away out to the railroad track. Last time I saw him he was going south right close by the end of the bridge, bearing down east a little bit to the railroad. Shortly after that I saw a train on the defendant's track. I think when I noticed it it was just pulling out up to the tank. When it pulled out, they went east. The train was made up of flat cars, as I recall it. The tender was going in front of the engine. Looked to me like it was a pretty good-sized tender. The engineer was on his box; but I couldn't say that I seen the fireman. Couldn't tell whether I noticed any coal in the tender or not. If any signal was given, any whistle blown, or bell rung when the engine pulled out from the tank, or between the guards and the tank, I didn't hear it."

Witness Charles Gorman testified: "I saw him ride up and come from the west and across the road running north and south there; saw him ride up to the hitch rack. The next I saw of him he was going towards the track, going south. He went, I judge, a little east. The last I saw him alive he was just south of this office, going towards the railroad track. Q. State whether or not, after that, there was a train pulled into the depot from the west? A. Yes; about the same time a train pulled in there, is my recollection. There wasn't much difference in the time the train pulled in and he left. Don't recollect hearing any signals when train pulled out." The train remained at the water tank but a short while, and the engine, after taking water, pulled eastward down the track with its train. The track was level and practically straight. There were no obstructions of any kind between the water tank and the cattle guards at the east end of the switch yards. The deceased walked in an easterly direction to a point about 2½ rail lengths west of the cattle guard at the east end of the switch yard, when he was struck by the engine and killed while between the rails of the main track.

Witness Martha Rickert testified: That she was standing at her front gate north of the switch yard, and about one-eighth of a mile east of the depot, or about one-half way between the depot and the cattle guards at the east end of the switch. "I saw the...

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