Beaber v. Kurn et al.

• Decision Date: 17 February 1936
• Docket Number: No. 18515.,18515.
• Citation: 91 S.W.2d 70
• Parties: EMMA BEABER, APPELLANT, v. J.M. KURN ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

91 S.W.2d 70

EMMA BEABER, APPELLANT, v. J.M. KURN ET AL., RESPONDENTS.

No. 18515.

Kansas City Court of Appeals. Missouri.

February 17, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

REVERSED AND REMANDED (conditionally).

Allan R. Browne, Ralph E. Griffith, Grover, Browne & Ennis for appellant.

Joseph W. Jamison, Henry S. Conrad, L.E. Durham, Hale Houts, and I.M. Lee for respondents.

BLAND, J.

This is an action for wrongful death. There was a verdict and judgment in favor of the plaintiff in the sum of $7500. Defendants filed a motion for a new trial, which the court sustained. Plaintiff has appealed.

The facts show that defendants are trustees in charge of and operating the railroad of the St. Louis-San Francisco Railway Company; that plaintiff is the widow of one William Beaber who was killed on March 29, 1934, in that part of Kansas City known as Sheffield, by falling or being pulled from the side of a box car on a freight train operated by the defendants.

The facts further show that the servants of the defendants had brought from a distant part of the city a train consisting of thirty-four empty box cars, a caboose and an engine, intending to store the cars in their Coburg yards in the east part of the city; that the train was proceeding southwardly and had about reached a point where it was the intention of the operators thereof to stop and back it up toward the north in order to go from the main line track on to the switch track leading to the Coburg yards; that the train was in charge of one Lawhon as conductor who, with one House, a switchman, was riding in the caboose; that one Timmons, another switchman, was riding in the engine with the engineer and fireman; that deceased was employed by the Sheffield Steel Company, whose plant was located a short distance east of the point on defendants' tracks where he was killed.

Plaintiff introduced as a witness, one Moffat, who testified that he was employed by the Sheffield Steel Company; that about 12:30 or 1:00 A.M. of the morning in question he, in company with a fellow employee; one Burris, had gone to McDougall's restaurant, located a few doors east of the railroad, on their way home from work and there they met deceased; that the latter had not worked that night but was to go to work the next day. The witness did not know how long deceased had been in the restaurant. However, the three remained there for about an hour, during which time all of them drank some beer and Burris and the witness had some lunch. All three left the restaurant together and when they got outside the witness told deceased that he would take him home. It appears that the witness had an automobile parked just west of the restaurant and across the railroad track. Deceased lived in another part of the city. The witness wanted deceased to go home but the latter stated that he desired to go back and get another drink and that he would then go home by taxi. The witness wanted deceased to go home because he "thought he had had enough (beer) he had to go to work the next morning ... it was getting pretty late in the morning. We was going and I thought we would take him home."

The witness further stated that he did not know how much deceased "had been drinking;" "but he was not intoxicated, in my opinion." Finally deceased decided to go on home and started east toward the train, which was then passing at the rate of about three miles per hour. He said something that the witness could not understand. Deceased started to walk fast as though he intended to board the train and the witness tried to stop him. The witness took hold of him and there was a scuffle. Deceased broke away from the witness and got upon the stirrup and grab iron or ladder on the front end of the box car then passing (the 25th car from the engine). Deceased "got hold of the ladder of the car with his feet on the lower strap (stirrup), caught it somewhere on the order that a switchman would catch a train." ... His body (was) in (a) somewhat crouched position, his feet out kind of down like that (indicating) and his hands up in a kind of a crouch as a switchman or brakeman would ride a car." Deceased's hips "projected out."

About fifty feet south of where deceased boarded the train there was a tool house on the east side of the track and about twenty feet south of the tool house was a tall white pole that had been used for a stop sign or a mail crane. About sixty feet south of the white pole was a switch stand. These objects were all east of the track. Across the track, and on the west side thereof, a short distance south of the switch stand, was an abandoned passenger station located near the railroad track.

As the engine passed the tool house Timmons alighted for the purpose of assisting in stopping and backing the train from the main line over the switch in question. Deceased had not boarded the train at this time. Seeing the men scuffling Timmons went to where they were and, according to Moffat's testimony, he said, "keep that man off there," meaning to keep deceased off of the train. Moffat testified that he was trying to keep deceased off of the train because "we had been drinking a little beer. I just didn't figure he had any business to get on the train;" that the train was not going in the direction in which deceased lived.

Timmons returned to the vicinity of the tool house and the train moved on south with deceased upon it. Moffat testified that when deceased on the train reached a place ten or twelve feet north of the white pole "Timmons placed his hands on his (deceased's) body somewhere close to his hips" and "he went along with Brunck (deceased) for a distance of several feet; that to say how hard he pulled or what he done, it is almost impossible to describe just what he did do, as he came into a shadow after following him, oh, I will say just a few feet, maybe ten or twelve, there seemed to be a shadow appear there where we couldn't see the brakeman or Brunck (deceased) either one;" that this was the last time the witness saw deceased until the latter was found injured between the tracks under the coupling of two cars.

Moffat further testified that he could not tell whether Timmons "was pulling or dragging (deceased) or what;" that the two became enveloped in a shadow when they reached the white pole and at that time. Timmons still had his hands on deceased; that after deceased was run over the police were called and Timmons "told the police that he had hold of Bill (deceased) and to say exactly how strong he pulled, his statement is almost on the order of that; that is, to the effect that he wanted him off the train. Q. Pulled him off? A. He didn't say `pull.' He said, `take him off;'" (the testimony just quoted was not objected to) that after they became enveloped in the shadow he saw Timmons going east emerging from the shadow with a lantern in his hand; that when Timmons got about twenty or twenty-five feet from the train he signaled to the engineer with the lantern. The track was level but there was a curve in it some distance south of where deceased was injured and it was necessary for Timmons to go to the east of the train in signaling the engineer in order that the latter might see the lantern.

Moffat further testified that the train came to a complete stop after going about sixty or seventy feet after the signal was given; that after the train stopped the witness and Burris "went down and met" Timmons and the latter said: "`Where is that guy?' I said, I answered something that `I don't know,' or `let's look for him;'" that they then started south along the east side of the train and when they got about half a car's length of deceased they heard him moaning; that deceased "was under the coupling of the two cars with his head close to the west rail and his body, or his feet, going east. He was laying right between the rails with his head close to the west rail;" that one of his legs had been cut off and lay east of the track and the other was nearly severed. Deceased was unconscious and never regained consciousness and died that afternoon in a hospital.

Plaintiff's witness, Sharp, testified that he was one of the police officers who came to the scene immediately after the casualty; that he found deceased lying between the tracks under the cars in a large pool of blood about five or six feet northeast of the corner of the abandoned station.

Timmons testified that after he cautioned Moffat and Burris to keep deceased off of the train the witness turned around and walked south to his former position in front of the tool house, facing north, where he expected to receive a signal from the trainmen who were at the rear end of the train; that he noticed deceased hanging on the car; that the witness "walked backward, with my hand on him, asking him to get off, get off, he might get hurt: `You better get off, you might get hurt,' or words to that effect;" that "as I approached that switch stand, it being dangerous to walk backward past there, I stopped there; then I got a signal from the rear end; and I walked over east, the length of this shanty (tool house) which is about thirty or thirty-five feet, and gave our engineer a stop sign, then I heard this man (deceased) `holler,' and as he (the engineer) stopped I walked back thirty-five feet, I should judge, to the track, and I met his (deceased's) two companions walking south along the track, and then we could hear this man (deceased) the closer we got, say, `Give me a drink of water.' And I says to one of the fellows, `I think we've hurt him,' but I didn't know whether he was under the cars, outside or where, but he was wanting a drink of water, and I went along and they went along, and I was shining my electric light along until we discovered him between the rails;" that the "holler" he heard "was kind of a scream" from the deceased; that the train was moving about three miles per hour at the time he...