Anderson v. Pryor

• Decision Date: 04 February 1919
• Docket Number: No. 15319.,15319.
• Citation: 209 S.W. 122
• Parties: ANDERSON v. PRYOR et al.
• Court: Missouri Court of Appeals

209 S.W. 122

ANDERSON v. PRYOR et al.

No. 15319.

St. Louis Court of Appeals. Missouri.

February 4, 1919.

Rehearing Denied February 25, 1919.

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

"Not to be officially published."

Action by Elisha Anderson against Edward B. Pryor and another, receivers of the Wabash Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Wells H. Blodgett, George B. Webster, Henry W. Blodgett, N. S. Brown, Walter N Fisher, and Walter N. Davis, all of St. Louis, for appellants.

George C. Mackay and W. G. Carpenter, both of St. Louis, for respondent.

BECKER, J.

This is a suit for damages for personal injuries against the defendants as receivers of the Wabash Railroad Company. A verdict resulted for plaintiff in the sum of $12,000. The trial court, upon consideration of defendants' motion for new trial, sustained said motion unless the plaintiff entered a remittitur of $4,500. Such remittitur having been made by plaintiff, judgment was entered against the defendants for $7,500. Thereupon the motion for new trial, as well as a motion in arrest of judgment, were overruled, and defendants in due course bring this appeal.

The accident occurred at or near the Wabash station at Salisbury, Mo., where the Glasgow branch connects with the main line, the branch line tracks coming into the station on its south side, while the main-line tracks run to the north thereof. About 200 feet east of the station, and a few feet south of the branch-line tracks, is a water-closet for the use of passengers. Between this water-closet and the station, and also immediately south of the branch-line tracks; is a coal shed. The ground between the tracks, and for several feet on each side thereof from the water-closet up to the station, is covered with cinders, making an even surface almost as high as the rails of the tracks.

On December 7, 1914, plaintiff, having come to Salisbury en route to Huntsville, purchased a ticket at the Salisbury station to Huntsville, and, having some minutes to wait before the train would arrive, plaintiff went up town and attended to some business affairs. On returning to the station plaintiff had occasion to_visit the water-closet, but found it locked, and thereupon walked to the coal shed near by to relieve himself, after which he started to return to the station, walking along the south rail of the branch-line tracks. Just as plaintiff proceeded from the coal shed up to the station he observed the locomotive on the branch-line tracks some distance to the east, standing still. When he reached a point approximately opposite the southwest corner of the station platform he undertook to cross the branch-line tracks to get upon the station platform, and just as he had stepped into the center of the tracks plaintiff saw the locomotive almost upon him, and, although he attempted to jump to a place of safety, he was struck by the tender of the locomotive and injured.

It is not necessary to set out the pleadings. It is sufficient to state that plaintiff went to the jury on the question of the application of the humanitarian doctrine alone. The answer, besides a general denial, pleaded contributory negligence.

During the progress of the impaneling of the jury for the trial of this case the record shows that amongst the venire there were five jurymen who were employés of various railroad companies. Each of such jurors was challenged by the plaintiff for cause, and such challenges were sustained, to which ruling the defendants excepted.

Plaintiff testified in his own behalf that he was 63 years of age; that he was a Baptist minister, with an average total annual earning of approximately $1,500 per year; that up until the time he received his alleged injuries he had been in excellent health; that on the morning in question, immediately upon arriving at Salisbury, he had entered the station and purchased his ticket to Huntsville, and, having some few minutes until train time, he had attended to some business in town, and on his way back to the station, at a point near the railroad tracks which lie south of the depot, which point was somewhat elevated, he looked about him and saw an engine and cars on the branch-line tracks, standing still, some several hundred feet east of the depot; that he then proceeded in the direction of the depot, and eastwardly along the south rail of the branch-line tracks, to a water-closet which was on the station grounds, and there for the use of passengers, and, finding it locked, he retraced his steps, walking westerly some 60 feet along the said tracks to a coal shed, which was standing some four or five feet south of the south rail of said branch-line tracks. After he had relieved himself he looked east along the branch-line tracks, and saw the locomotive, which was attached to several freight cars, with the tender thereof facing west, and the said freight cars in front of the engine, or to the east thereof, standing still. He thereupon proceeded toward the depot, walking leisurely, and "walking right up against the south rail" until he was opposite the east end of the station platform. He walked "40 to 60 feet," which took him about one-half minute, and then proceeded to cross the tracks diagonally; that he had stepped about to the center of the tracks, and at a time when he had advanced one foot forward he glanced over his right shoulder, and saw the engine bearing down upon him, then about 6 feet distant; that "it was too late for me" to retreat, because the momentum of "my body had gone forward, and I sprang," and the corner of the pilot of the engine struck him, throwing him backwards on his head onto the brick pavement of the station platform; that he did not hear any bell rung nor any whistle sounded, nor did he hear any other warning of the train's approach at any time; that the pilot struck him in the right hip; he was thrown backwards, and received a gash in his head about three inches long to the bone; that his arms were bruised, and a spot about his hip, some 4 by 7 inches, was badly bruised; his shins were skinned and bruised, and a cut on his neck at the base of the brain; that his eyes became bloodshot, and he suffered considerable pain in his head and side, and in fact all over his body, and that ever since receiving the alleged injuries he has been nervous, and continues to suffer headaches up to the time of the trial, and he is only able to get "about one night's sleep a week," and that his memory has been poor since suffering these injuries, and he had lost his sense of direction; that up to the time of the trial he suffered pains in the head, "one coming over and terminating back of this eyeball, and the upper part of the eye is very sore to the touch, and branching off toward the car and around the base of the brain; they are continually there, and so much so that at night I am awakened from my sleep, and cannot go to sleep for a long time, due to the continual pain and aching;" that up to the time of the trial he had expended for medicine alone about $60, and had several physicians treating him for about a month after receiving the injuries, since which time he has been under the care of a specialist on nervous and mental troubles.

Plaintiff introduced in evidence the deposition of J. D. Raikes, who testified that he was the engineer employed by the Wabash Railroad, and was in charge of the locomotive in question on the day plaintiff met with his injuries; that the locomotive was pulling three or four freight cars, proceeding with the tender first, so that the engine was in point of fact backing up; that his position in the cab of the engine was on the south side of the branch-line tracks, and on the same side of the tracks on which the plaintiff was walking; that the engine was moving at the rate of about five or six miles per hour; that the locomotive was equipped with effective air brakes and appliances, which were in good working order at the time plaintiff met with his injuries; that it was a bright day, and the tracks "were as dry as you will get the rails most any time"; that the engine was equipped with a device to drop sand upon the tracks, which would aid in stopping the locomotive and train in an emergency in a shorter time than without its use. In answer to the question, "At this place and time, and at this rate of speed, with your rails as they were, dry, and brakes in good condition, within what distance could you have stopped your engine?" his answer was, "25 or 30 feet," and that if he had used sand he could possibly have stopped the locomotive and cars in a space of 20 feet; that the locomotive and cars had been standing still for "a couple of minutes" or "a little more" just prior to the starting of the engine and cars; that, coming down along the tracks toward the depot, they proceeded to back to the west; that he first saw plaintiff just east of the coal shed at a time when the train was not over 30 feet away from him; that he observed plaintiff walking along the tracks for a distance of some 10 or 15 feet; that he did not stop nor slacken the speed of his locomotive from the time that he saw the plaintiff until' after the tender of the locomotive had struck him; that when he observed the plaintiff he was walking with his back toward the approaching train, and was walking along the cinder path about 4 or 5 feet from the tracks; that he did not see plaintiff give any sign or signal that he knew of the approach of the locomotive; that after he saw plaintiff he looked east to see if the brakeman or switchman "wanted me to stop or cut loose at the crossing"; that he did not receive such a signal, however; and in answer to the question as to how long he was looking for the signal he answered, "A few seconds." Further, that when he saw plaintiff walking along the tracks the bell was ringing, but that he did...