Baecker v. Missouri Pac. R. Co.

• Citation: 240 Mo. 507,144 S.W. 803
• Parties: BAECKER v. MISSOURI PAC. R. CO.
• Decision Date: 29 February 1912
• Court: United States State Supreme Court of Missouri

144 S.W. 803

240 Mo. 507

BAECKER v. MISSOURI PAC. R. CO.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. RAILROADS (§ 398) — INJURY TO PERSON ON TRACKS—LAST CLEAR CHANCE—NEGLIGENCE—EVIDENCE.

Evidence, in an action for death of a person, struck while on the ends of the ties of a railroad, by a train, for whose death the company would be liable only under the last clear chance doctrine, held insufficient to show that, even if he had been on the track for some time, he could have been seen in time by those in charge of the train to render them negligent.

2. RAILROADS (§ 398) — INJURY TO PERSON ON TRACKS—LAST CLEAR CHANCE—NEGLIGENCE—EVIDENCE.

Evidence, in an action for death of a person, struck while on the ends of the ties of a railroad, by a train, for whose death the company would be liable only under the last clear chance doctrine, held insufficient to show that he had been on the track long enough to render those in charge of the train negligent, even if he could have been seen in time by them had he been there any length of time.

Appeal from Circuit Court, Gasconade County; R. S. Ryors, Judge.

Action by Paulina Baecker against the Missouri Pacific Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Breuer, Hensley & Meyers, for appellant. C. D. Corum, for respondent.

LAMM, J.

Negligence. Plaintiff sues for $10,000 damages for the death of her husband, and, cast below on a demurrer to her evidence, appeals.

Morrison is a way station on the main line of the Missouri Pacific Railroad on the east side of Osage county. Gasconade is the first way station east of Morrison on the same railroad and is located near the west bank of the Gasconade river in Gasconade county. Hermann is the capital of Gasconade county and the next station east of Gasconade on said railroad. Washington is a station on the same railroad on the east side of Franklin county and a good ways east of Hermann.

On the 9th day of November, 1907, one Frank boarded defendant's train as a passenger at Washington and took passage to Hermann, near which place he lived. Drowsy from liquor, he straightway fell asleep on the train and, passing Hermann, continued both his slumber and trip to Gasconade, where he got off. By this time he was partly sober, but, as if the hair of the dog was good for the bite, at once began drinking himself into a worse befuddled condition, in which predicament we leave him for the present.

Taking up another thread of the story, at about 5 o'clock of the morning of November 9, 1907, Hermann Baecker (husband of plaintiff) left his home six miles away to go to Morrison, there to take passage on one of defendant's trains east to Hermann to do some banking business. What bitter ill wind blew him elsewhere, or how and why he got to (or off at) the village of Gasconade, is dark; but 11 a. m. of that day finds him there in company with Frank in a tippling house, called Chill's saloon, south and east of defendant's depot. At that time there was an engine coupled to a freight train and headed east with steam up, standing on the side track at Gasconade. At that very time also a regular passenger train was due to pass west on the main line. We infer from a bit of testimony that Frank and decedent planned to interview the conductor of that freight train to see if he would carry them both east to Hermann. At any rate, they left the saloon in company at that time and walked north on a little path (connecting the saloon and depot) to the tracks, there they turned west at a right angle around the nose of the freight engine, and proceeded toward the depot. Presently Mr. Baecker was struck by the engine of the west-bound passenger train running very fast and was so grievously hurt that he died that afternoon in the town of Hermann, where he was carried. So much for an out-line of the general facts. Further on we will state the immediate facts upon which plaintiff relies to recover.

Attending to the pleadings, the petition alleges a customary user of the track by pedestrians at the point of the accident with the forbearance and tacit consent of defendant for many years; that the track was straight there for a long distance east; that while decedent was "walking on said track and right of way of defendant" he was struck and mortally injured by defendant's train; that defendant's servants and agents in charge of the train either saw, or by ordinary care could have seen, his peril, and that he was unaware of the approach of the train; and that afterwards they negligently failed to warn him by bell or whistle and negligently failed to use the brakes or other appliances provided for stopping the train and putting it under control before it struck him, but, on the contrary, negligently ran its train against deceased, injuring and killing him. The answer admits certain conventional allegations in the petition, and then denies generally each and every other allegation thereof. Next it pleads the contributory negligence of decedent in walking upon the track or dangerously near the same immediately in front of the train without looking or listening, without heeding any warnings given by defendant's employés or taking any care to avoid his own injury and in such close proximity to the train that it was impossible to stop the same and avoid his injury, and that decedent was a trespasser upon defendant's track. The reply put in issue the new matter in the answer.

In addition to facts already stated, plaintiff put in proof tending to show from Frank that he did not know how decedent and he got on the other side of the freight train. He did not know whether they got across, climbed over, or went around it; but they got around it some way. This witness (the main one) does not say that Mr. Baecker at any time looked for a train on the main line after he passed around or over the freight train, but does say that he (witness) did not see one. Neither does he say that they got on the railroad track itself when they passed around the engine and turned to the west. That is to say, it is left dark whether they (either or both) were on the track, or were between the main track and the side track at the start of their journey west, and the best we can conclude, is that Frank did not see Baecker again until "just as he got struck." The record explains that in this way: Presently a brakesman on top of the freight train hailed Frank, who stopped at the hail. The brakesman then chided him for remissness in hospitality in not taking him along to the saloon. During this talk Mr. Baecker left Frank and walked on. There is no testimony showing that Frank kept his eye on him. When he was 15 or 20 steps ahead of witness, the brakesman shouted, "Look out!" Witness then turned and looked east and saw the coming train. Referring to said distance, witness said he meant to say that Mr. Baecker was 10 or 15 steps from him when he was struck. "When the train (engine?) had passed," says the witness, he looked and saw Mr. Baecker with his hands behind him walking outside the track on the ends of the ties. When witness first saw the train, it was about one car length behind him (witness). The crossbeam of the engine struck Mr. Baecker, and the next Frank saw of him he was lying on the side of the track. The wind was blowing, the train was not making much noise, and witness heard no signal by bell or whistle.

On cross-examination Frank would not say whether there was a whistle blown or bell rung, but reiterated that he did not hear any. He admitted he had stated to others that he was so excited that he did not remember whether the whistle blew or not. He reiterated that he did not know whether he and Baecker had passed around the head of the engine or got through or over the train. At the time the brakesman called to witness, he "was in the middle of the track, and Mr. Baecker was alongside of the ties. * * * When he saw him he was walking on the outside of the track, between the two tracks, on the outside of the ties, between the rails." Witness saw him "just as he got struck." He could not say how many steps he took, and witness did not see Mr. Baecker when he turned to cross over on the main track. Witness himself was in no danger when the brakesman shouted, "Look out!" because he was between the two tracks. When he looked ahead, he saw Mr. Baecker about as far away as "across this courtroom." He locates this time as being after witness had his attention called to the train by the brakesman's shout and then turned and looked east and saw the train and then looked for Mr. Baecker. He could give no distances because, he said, he was "a little bit intoxicated." Frank also testified that the engineer could see a man where Baecker was from the train, but he does not say at what distance.

Mr. Vandewerken testified that he was sitting in his yard reading a newspaper under a shade tree about 75 feet north of where decedent was killed. He saw decedent and another man walking around the head of a freight engine taking water at the tank. They then walked toward the depot "in the middle between the two tracks." (Note: there was no testimony as to how far these tracks were apart.) After that time witness next saw Mr. Baecker after the train had passed to the west. He did not hear the train coming, heard no signals, and testified that he could not have heard any. He heard the freight engine blowing off and making "a great racket," and he saw the passenger train and heard some one say "It hit somebody." He testified, also, that there was a boat landing at the bridge east of the village on the Gasconade river, and that people used the track to go to the boat landing and return. On cross-examination it appears that the witness could not hear well. As he was born in 1829, he was 79 years old at the time of the trial. The record also shows the following question and answer: "Q. Then when you saw the men walking up, did you know just where they were...