Aufdenberg v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 03 March 1896
• Citation: 34 S.W. 485,132 Mo. 565
• Parties: Aufdenberg v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

34 S.W. 485

132 Mo. 565

Aufdenberg v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri, Second Division

March 3, 1896

Appeal from Cape Girardeau Circuit Court. -- Hon. H. C. Riley Judge.

Action for damages brought by plaintiff as the widow of Herman Aufdenberg, against defendant company for the death of her husband. The material portion of the petition is here copied:

"That while Herman Aufdenburg was a passenger on defendant's train of cars on the ninth day of February, 1892, as aforesaid, he, with the knowledge and consent of defendant through its servants, officers, agents, and employees managing and conducting and operating said steam locomotive and train of cars, left the passenger car in which he was then and there conveyed, and, with the consent and full knowledge and permission of defendant, he climbed upon the top of a box freight car, it being a part of defendant's mixed train of freight cars together with said passenger car and the defendant, by and through its agents, servants, and employees as aforesaid, negligently and carelessly unskillfully and with criminal intent, started said train of cars, well knowing deceased to be in his dangerous position upon the top of said box car, and continued to run said train along said branch railroad so that the deceased, without his fault, was suddenly and violently thrown from the top of said car onto the track of said railroad and under the cars and train by means and by reason of which the wheels of said cars and train ran upon and over the body and limbs of the said Herman Aufdenberg, so that he was thereby injured, and from the injuries received as aforesaid did then and there die; which killing occurred near the trestle number 22, about miles from the town of Gordonville on said branch railroad; that the defendant could have prevented such killing by the exercise of proper care after the deceased climbed upon the top of the said box car, and by and through its agents, officers, servants and employees, managing and conducting said train carelessly, negligently, and with criminal intent, failed and refused to prevent the killing of deceased. That the said injury, from which the said Herman Aufdenberg died, as aforesaid, resulted from and was occasioned by the negligence, unskillfulness, criminal intent, and default of the defendant by and through its officers, agents, servants, and employees, while running, conducting, managing, and operating the said steam locomotive and train of cars at the time and place, in the manner hereinbefore set out. Wherefore, etc."

The answer pleaded, first, a general denial, and further pleaded: "That plaintiff's husband, against the advice, direct admonition, and command of the conductor of the defendant's train at the time of said accident, negligently, and in reckless disregard of his life, left the passenger coach in which he was riding as a passenger, and which was provided for the use of passengers, and climbed on top of a freight car, from which he fell and was killed. So the defendant charges that the death of plaintiff's husband was occasioned by his own negligence, and that this defendant is in no way responsible for the same." To this, plaintiff filed reply.

Told in brief, the substance of the evidence is this: Herman Aufdenberg, on the morning of February 9, 1892, bought at Gordonville a return trip ticket to Whitewater station on defendant's road. Aufdenberg first took his seat in the passenger portion of the coach, which was used, by means of a partition therein, both as a passenger coach and as a baggage car. There was ample room in the passenger car, which was at the rear end of the train, and in front of it were some seventeen box cars and one coal car loaded with small coal. Aufdenberg had been in the habit of riding on these trains during a period of three years next before the accident.

The rules of the company forbade passengers to ride on the car platforms, on the engine, or in the baggage car. These rules were conspicuously posted in the passenger coach as required by law. As the train was leaving Allenville, Aufdenberg started to leave the baggage end of the passenger coach, and the conductor, Kelly, called him to come back; but notwithstanding he must have heard, he did not heed, but kept right on to the adjacent car which was loaded with fine coal for the mills, and there he sat down. Kelly followed him out to the coal car, and then tried to get him to come back, but he said, "No, I want to ride here." Kelly next noticed him when the train reached Dutchtown, where the train had come to a standstill. There Aufdenberger had left the coal car and gone on top of a box car, which was the third box car ahead of the coal car. At Dutchtown the train stopped about five minutes. Aufdenberg was then sitting still on the top of the box car.

While the train was stopping at Dutchtown, Kelly went up to Aufdenberg on the box car and tried to persuade him to go back to the coach, but he refused, saying, no, he wanted to ride there, and Kelly said to him, "Then hand me your ticket," which he did. When the train started from Dutchtown, Aufdenberg was still on top of the train, sitting with his feet hanging down in front end of the car, and on his left side was the brake rod, and on the opposite side was a hand hold. Kelly staid there for a minute or two and then returned to the coach and never saw Aufdenberg after that alive. About two and a half miles from dutchtown, Aufdenberg fell off, and was run over by the cars and killed, and Kelly, judging from the indications on the wheels and trucks, judged that some ten or twelve cars passed over Aufdenberg's body, which would indicate that Aufdenberg, after Kelly left him, had gone forward some six or eight cars from where Kelly left him sitting on the box car.

John Luber, Sr., who lives halfway between Dutchtown and Gordonville, that is, at a point where it is two miles each way to either town, testified that on the ninth day of February, 1892, he saw Aufdenberg on top of one of the box cars lying down with his face toward witness; then just as the train came up close to witness, who was standing in his yard, Aufdenberg got up and walked forward "pretty pert," toward the engine, several cars. The train was just then going down grade and though witness could see Aufdenberg, he could not see how many cars he passed over.

Luber's son, however, who was in the field with his father, but farther away as well as on higher ground, saw Aufdenberg walking on the cars, up toward the engine, and he says he saw Aufdenberg walk over two cars, when he fell down head foremost, and on the father and son going to the spot, they found Aufdenberg's remains. This testimony of Luber and son stands undisputed.

Something is said by counsel for plaintiff in their brief about Aufdenberg's "condition" intimating intoxication; but there is not a scintilla of testimony to that effect; the only witness interrogated on the subject, Sebastian, a brakeman, says in reply to a question: "I don't know if he was drunk or sober."

Counsel also state that "the testimony of Dr. Miller shows that deceased told the conductor at Dutchtown he was sick." Now Dr. Miller's deposition taken by plaintiff but read by defendant, shows that in a conversation with Aufdenberg, Kelly asked him "if he was sick; he, Aufdenberg, said no."

An instruction in the nature of a demurrer to the evidence was denied defendant, and the court at the instance of plaintiff gave the following instructions:

"1. The court instructs the jury that, if you should believe from the evidence that the train run and operated by the defendant on the Jackson Branch of the St. Louis, Iron Mountain & Southern Railway was a mixed train, used for the transportation of passengers, and for freight, it was the duty of defendant's conductor and employees to use the highest degree of care for the safety and protection of the passengers on said train, and if you should believe from the evidence that, on the ninth of February, 1892, Herman Aufdenberg was a passenger on said train, and during the trip from Allenville to Gordonville, he climbed upon the top of the freight car in said train, and the conductors or agents in charge of said train knew of his being there, it was their duty, and they had full power under the law, to cause him to come down, and if they failed to do so the defendant was guilty of negligence, and is liable in this suit.

"2. The court instructs the jury that, if you shall find from the evidence that the train upon which the deceased was riding was a mixed train used for the transportation of passengers and freight, that deceased had paid his fare as a passenger, and that, during the trip from Allenville to Gordonville, he was guilty of negligence in leaving the passenger coach and climbing upon top of the freight cars of said train; yet, if you further find from the evidence that the conductor of said train discovered the position of deceased on top of said car a sufficient length of time before the accident to stop the train and cause the deceased to descend from said cars, and, instead of so doing, said conductor permitted said deceased to remain, and was afterward jerked or thrown from said cars and killed, defendant is liable, and you should find for the plaintiff."

Two instructions, among others, were refused defendant, of which the following are specimens:

"3. The court instructs the jury that defendant's conductor had no right to consent that plaintiff's husband might ride on the top of defendant's freight cars, and although the jury find that the conductor did so consent, yet the defendant is not liable.

"4. The court declares, as a matter of law, that, if plaintiff's husband walked...