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

• Decision Date: 18 February 1918
• Docket Number: No. 12750.,12750.
• Citation: 203 S.W. 246
• Court: Missouri Court of Appeals
• Parties: ARMSTRONG et al. v. DENVER & R. G. R. CO.

203 S.W. 246

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

No. 12750.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

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

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

TRIMBLE, J.

This action is by the heirs of Robert Armstrong, deceased, against defendant for negligently causing his death in the movement of a train. He was killed in Colorado, and the cause of action is under the statutes of that state, which gives to the heirs of the deceased, in case the widow fails to sue within a year, the right to recover not less than $3,000 and not more than $5,000 for such death. The widow failing to sue, the heirs brought their suit within the time allowed them. The case is before us on its second appeal by defendant. The first was disposed of in an opinion by Johnson, J., reported in 195 Mo. App. 83, 190 S. W. 944. It was held that, on the evidence as then presented, an issue was made for the jury on the question of defendant's negligence under the "last chance" or humanitarian rule, but not on the other grounds of negligence, and the cause was remanded. Upon the trial anew the plaintiff abandoned all other specifications of negligence save the one above mentioned, and submitted the case solely upon that. Plaintiff obtained a verdict and judgment for $5,000.

Armstrong was foreman of a dozen employes of the Western Union Telegraph Company, engaged in repairing the telegraph wires along defendant's right of way in Colorado. The men boarded at Castle Rock, and went to and returned from the scene of their labors—a point about 2½ miles north of Castle Rock—upon hand cars over the defendant's railway track. They had come to Castle Rock to repair the damage done to the telegraph wires by a storm, which occurred some two or three days before the tragedy involved in this case. On the morning of Armstrong's death the assistant foreman, Heinerman, and five of the men, got their hand car out of the toolhouse at Castle Rock and started north on the way to their place of work; and Armstrong, with his half of the men, followed upon another hand car about a quarter to a half mile behind. Defendant's daily north-bound morning train was 19 minutes late, and had not passed Castle Rock at the time the deceased and his men left. Shortly thereafter, however, " it arrived at Castle Rock. and, after stopping to receive and discharge passengers, it resumed its northward journey. On the railway track just north of Castle Rock there are three curves, and two or more cuts from 10 to 25 feet deep. In the first and largest of these there was a double reverse curve, but at or very near the north end of said cut the track straightens into a "tangent" and proceeds north on a straight line over a fill, to and through two other cuts, and over another fill. After Armstrong and his companions on the second hand car came out of the north end of said large or first cut and had entered upon the straight track over the fill succeeding it, the men of the front hand car, about a quarter of a mile farther on, who had become aware of the train's approach from the rear and had removed their car from the trick, signaled the men on the rear hand car, and they looked back and saw the train behind them, "just coming out of the cut" and about 410 feet away. The hand car was stopped and the men immediately endeavored to get it off the track, and had succeeded with the exception of one wheel. The men, realizing that the train was too close upon them, abandoned their efforts and remained where they were safe, except Armstrong, who ran around to the front of the car to lift the remaining wheel off the track. Before he could do so, the oncoming train struck the hand car, throwing it violently against him, and injuring him so that he died a few days later. The place of the injury was about three-fourths of a mile or a mile north of Castle Rock.

The petition alleged that Armstrong was in a situation of peril, unknown to him, and that the operator of the engine saw him in a position of peril, or by the exercise of ordinary care and caution could have seen him in such peril, in time by the exercise of ordinary care to have stopped or slackened the speed of said train before striking said hand car, and thus have prevented his injury and death, but negligently failed to do so; and the cause was submitted to the jury upon the same issues, namely, whether the operatives of the train became aware of deceased's peril, or by the exercise of ordinary care might or could have become aware of it, in time to have averted the injury. There was neither allegation nor proof that the place where deceased was killed, was one where the engineer was required to be on the lookout for any one on the track, or that it was a place where he should have anticipated that some one would be on the track. In Nivert v. Wabash R. Co., 232 Mo. 626, 135 S. W. 33 (a case where the petition contained no allegation that the injured person was at a place where the defendant should have anticipated the likelihood of his presence, but nevertheless alleged that the engineer saw or might have seen him), the court held that the petition, for want of the former allegation, stated no cause of action. We do not understand that Judge Woodson's ruling (232 Mo. at page 639, 135 S. W. 36) on this point was not concurred in by the rest of the court. The very question before the court was whether the petition stated a cause of action, and the decision was concurred in by Judges Graves and Lamm, with Judge Valliant absent. Judge Lamm (232 Mo. on page 648, 135 S. W. 39) expressly concurs in Judge Woodson's holding; and we take the exception in the statement (232 Mo. on page 644, 135 S. W. 38) that Judge Graves "concurs in all of the opinion except what is said regarding the pleadings" as referring to what Judge Woodson had said concerning the impossibility of uniting common-law negligence with a violation of the humanitarian rule in the same petition. The trial court had held the petition stated no cause of action, and Judge Graves could not have disagreed with all that Judge Woodson said about the pleadings, else he could not have concurred in any part of the opinion, since the only question involved was the sufficiency of the petition. In that case, however, there was a direct attack made on the petition in the trial court, though only by an objection to the introduction of evidence, which was sustained by the trial court.

In the case at bar no attack was made on the petition in any way, and unless the petition is so defective as to wholly fail to state any cause of action at all it should be held sufficient after verdict. However, whether the petition is so defective as not to state any cause of action at all, or whether it would have been sufficient, had the case been submitted only upon the question of whether the engineer actually saw the deceased in time, are questions we do not feet compelled to decide, for reasons which will hereinafter appear. Nor need we decide whether, in the absence of any allegation as to the engineer's duty to be on the lookout, or of any facts showing such duty, plaintiffs are entitled to prove that such was his duty, since, in our view of the case, no evidence tending to show a duty to be on the lookout was presented.

The place of the accident was on a fill between two cuts. It was not at a public crossing, or at any place where persons were accustomed to be; in fact, it was in a section where there was no population. It was not even near the scene of the men's work, where they were engaged in repairing the telegraph line; that being at least a mile and a half farther on. And the place where the engineer had seen them at work was about four miles farther on. Even if the engineer had seen them at work on the telegraph line a day or two before, he did not know they had just left Castle Rock on hand cars ahead of his train. No one informed him of that fact, and indeed on previous days they had gone to work after his train had passed. Their work did not require them to be on the track, except when going to and from their boarding place or from one place to another. When actually at work they had no business on the track, nor of having their car thereon. When obliged to be on the track going to and from their work, the assumption, under the rule in Missouri, is that they would keep posted as to the time of trains and keep a constant lookout for them. And it was...