Armstrong v. Denver & R. G. R. Co.

• Decision Date: 18 December 1916
• Docket Number: No. 11874.,11874.
• Citation: 195 Mo. App. 83,190 S.W. 944
• Parties: ARMSTRONG et al. v. DENVER & R. G. R. CO.
• Court: Missouri Court of Appeals

190 S.W. 944

195 Mo. App. 83

ARMSTRONG et al. v. DENVER & R. G. R. CO.

No. 11874.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Rehearing Denied December 29, 1916.

Appeal from Circuit Court, Jackson County; Jas. P. Aylward, Special Judge.

Action by Helen Armstrong and Dorothy Armstrong, a minor, by Emma Armstrong, her next friend, against the Denver & Rio Grande Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded.

White, Hackney & Lyons, of Kansas City, for appellant. Prince & Harris, J. E. Westfall, and Joseph S. Rust, all of Kansas City, for respondents.

JOHNSON, J.

Robert J. Armstrong, employed by the Western Union Telegraph Company as foreman of a company of workmen engaged in repairing one of its telegraph lines along defendant's right of way, was killed in April, 1910, near Castle Rock, Colo., by a passenger train, and this action was commenced in July, 1911, by his daughters, as plaintiffs (his widow having failed to sue), to recover damages for his death on the ground that it was caused by negligence of defendant in the operation of the train. Verdict and judgment were for plaintiff in the circuit court, and the cause is here on the appeal of defendant.

The repairers, ten in number, under the leadership of Armstrong, had been repairing injuries to the line caused by a severe and extensive storm, and in the prosecution of the work traveled on hand cars with the knowledge and consent of defendant. They boarded at Castle Rock while working in that vicinity, and on the morning of the injury in question started at the usual time to travel on two hand cars to their place of work which was some distance north of Castle Rock. Half of the workmen, including the assistant foreman, one Hinerman, departed first on one hand car and the other half with Armstrong, the foreman, operated the second car, which followed the first at a distance of about a quarter of a mile. If defendant's north-bound passenger train had been on time that morning, it would have passed Castle Rock a few minutes before the hand cars were due to leave, but it was 19 minutes late, a fact known to Armstrong, and did not arrive at that station, where it stopped to receive and discharge passengers, until a few minutes after the hand cars had started. After leaving the station, the train attained a rate of speed about which the witnesses differ, but which, for present purposes, may be estimated at 30 miles per hour, and it was running at that rate when the engine, emerging from a cut where the track, following a sinuous course of reverse curves, straightened into a tangent, afforded the engineer a view of the rear hand car which then was being removed from the track at a point in the middle of a fill which succeeded the cut.

The engineer, introduced as a witness by defendant, testified, in substance, that he saw the hand car and the men trying to remove it as soon as they came into view; that the car was 200 feet in front of the engine; that he immediately sounded the whistle, applied the air brakes, and succeeded in coming to a full stop in a distance of 500 feet, but not until after the locomotive struck and hurled the car from the track, but in his effort to stop he did not reverse the power. Warned by a signal from the men on the first hand car that the train was coming, Armstrong had stopped his car, and he and the men had succeeded in removing all but one corner from the track, and Armstrong alone was trying to complete the removal, the other men having fled to places of safety, when the train struck the car, which, in turn, struck Armstrong and inflicted injuries from which he died. The engineer said:

"Armstrong was in the act of going around the hand car. You see the whole car was not on the track at the time I saw it; it was all off, with the exception of the right front wheel, on the west side of the track. The whole car was off with the exception of the west front wheel, which was in between the rails; understand? The right front wheel was in right close to the rail, and he must evidently have been trying to run around the front of the car to lift the wheel off, so he could throw it off the track and keep from striking the car. I saw him do it, saw him going around, walking or running * * * just as fast as he could go. Of course, I just saw it for a second. The boiler obstructed the view after."

The petition alleges negligence of the engineer in not sounding the whistle, as was customary and usual on entering or passing around curves or through cuts, and also negligence under the humanitarian doctrine in not making a reasonable effort to stop or slacken speed of the train after the engineer saw, or should have seen, and realized, that Armstrong was in a position of danger. Certain sections of the Colorado statutes are pleaded, but in the view we have of the case, they are not material to the determinative issues now before us, and therefore need not be stated.

At the close of plaintiff's evidence, and at the conclusion of all the evidence, defendant requested that a peremptory instruction...