Beard v. Missouri Pac. Ry. Co.

• Citation: 197 S.W. 907,272 Mo. 142
• Decision Date: 09 October 1917
• Docket Number: No. 18516.,18516.
• Parties: BEARD v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

197 S.W. 907

272 Mo. 142

BEARD v. MISSOURI PAC. RY. CO.

No. 18516.

Supreme Court of Missouri, Division No. 2.

October 9, 1917.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by William Beard against the Missouri Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Chas. Graves and Carl L. Ristine, both of Lexington, and Reynolds & James, of Marshall, for appellant. H. C. Clark, of Nevada, Mo., and James F. Green and Edw. J. White, both of St. Louis, for respondent.

WALKER, P. J.

This is an action brought by an administrator for damages for the death of one Arthur Beard, alleged to have been caused by the negligence of the defendant. The cause of action arose in Lafayette county, where the suit was instituted, but upon a change of venue it was tried in Saline county, resulting in a majority verdict for defendant, from which plaintiff appealed.

The deceased was killed February 28, 1913, by being struck by a loaded coal car; it was one of ten of a like character then being pushed or backed along a spur track by one of defendant's engines. This engine was narrower than its tender which was between the engine and the cars, and was also loaded with coal, as were the cars for about a foot or more above the top of each. The length of the train, exclusive of the engine, was about 500 feet. No one saw the car strike deceased, but the facts adduced in evidence, accompanied by the attending circumstances, sustain the conclusion that the deceased was at the time walking in the middle of the track with his back to the train when the engine backed the cars down on him and killed him. There was no one at the end of the last car from the engine at the time. One of the brakemen had a few minutes before been left at a switch. The conductor had gone into the mine office near the track to get the coal billing. The other brakeman was setting the brakes on the ninth and tenth cars from the engine, and as he says at the same time "looking straight down the track" when he dropped off 200 feet south of where the deceased was struck and was not aware of it until after he had gotten down on the ground and saw a miner's bucket roll out from under the cars.

The spur track upon which the killing occurred had been built and was then being used by defendant to connect its main line with certain coal mines located about 2½ miles south of the city of Lexington. The deceased was a miner, and was en route from the mines to his home when killed. The tracks run north and south at the place where the killing occurred. About 200 feet south of where the body of the deceased was found a public road crossed the tracks. No bell was rung or whistle blown when the train crossed this road. Seventy-five feet further south the switch or spur tracks leaves the main track in a southeasterly direction. The train, before backing down upon the deceased, stopped just north of the divergence of the switch track from the main line. Many miners and others lived in the immediate neighborhood. In the middle of the spur track there was a beaten pathway which for years had been used, with defendant's knowledge and without its protest, by pedestrians. Miners used it in going to and from their work; women used it in going to and from Lexington and other parts of the neighborhood; and children used it in going to and from school and for other purposes. So general was this use that a former employé of the defendant, a conductor, stated that when he ran a train over this spur it was often necessary to whistle to get women and children off the track; and that this pathway had been thus used ever since the spur track was put in. This use is explained by the fact that the smooth surface between the rails afforded a better place for walking than on either side where the ground was rough and sloped abruptly from the ends of the ties.

It was snowing and the wind was blowing from the north at the time of the killing. The last time the deceased was seen alive was four or five minutes before he was killed; he had just left the mine where he had been at work and was walking with his dinner bucket in his hand in a northerly direction in the middle of the spur track. Persons who first arrived upon the scene saw the tracks of one person between the rails in the snow leading northward from the public crossing to the place where deceased was struck; this place was located by the tracks of the person terminating abruptly, followed by marks in the snow as though a body had been pushed along from that point with the toes dragging on the ground. Following this the snow had been rubbed off of the west rail, and from thence to where the body was found the rail was smeared with blood and pieces of flesh for a distance of about 120 feet. Witnesses for the plaintiff testified specifically in regard to this phase of the case as follows:

"We found his tracks right there where he had been walking down the middle of the track right between the rails. We noticed where he was struck. We could tell from his toe prints where the train hit him. The train just raised him up and dragged him along for about 10 feet, and there were no marks at all after that until where he hit the rail on the west side. It looked there like somebody had been drug, and then on the first joint where the flesh and blood was torn off; and further on it was torn off all the way. The distance the body had been dragged was about four rails. They were 30-foot rails. When we went back to make the examination there was just one track between the rails and our tracks on each side where we had walked down to him."

This rule of the defendant was introduced in evidence:

"102. Where cars are pushed by an engine (except when shifting and making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need."

The theory of the defense is that the deceased was not walking between the tracks when killed, but that he was outside of the rails, and the inference deduced, in the absence of testimony, from the statements of the engineer and brakeman, because they state they did not see him, is that he was not struck while walking between the rails, but while on one side of the track in an attempt to climb on one of the cars. The testimony of the engineer in this regard is that he was sitting in the cab of the engine when the accident occurred, and in looking out over the ten cars he could see 50 or 75 feet ahead of the last car, but saw nothing on the track. The brakeman, who was at the time on the ground going back towards the engine, also says he saw nothing on the track. His testimony in this regard is contradicted by a witness for the plaintiff who testified that the brakeman told him immediately after the occurrence that he had "seen a man on the track in front of the cars who suddenly disappeared and he didn't see him any more until his dinner bucket rolled out and he looked and saw his body on the track."

The conductor, who was apprised of the killing by the brakeman after the latter had jumped from the train, stated on direct examination that he noticed at the crossing where a man had come off of the side of the road and started down on the outside of the tracks; that these tracks extended down about 150 feet from the crossing where they turned in directly towards the track. There the snow was raked off of the outside of the rail for about 50 feet from where the body of the deceased was found on the ties next to the rail; that the wheels of but one car and one pair of trucks of another car had passed over the body. A former statement of this witness, taken under oath soon after the occurrence, was introduced, wherein he stated that he had examined the cars to see if there was blood on them and that he found blood on the tenth or last car from the engine, and that six cars and one pair of trucks had passed over the body. A synopsis of the pleadings will enable the issues submitted to be more readily understood.

Following the usual formal allegations necessary in a case of this character the petition alleges the frequent use by pedestrians of the spur track on which the killing occurred, defendant's consent to such use, the negligent killing of the deceased by the backing of defendant's cars down upon him while he was walking northward on the track unaware of the approach of the train; that through the exercise of ordinary care on the part of defendant's employés operating the train they could have become aware of the presence of the deceased on the track and have thus averted striking and killing him; that they negligently failed thus to do and thereby caused his death; that they failed to sound the usual or ordinary signals in time to avert the killing of the deceased in that they did not at any time sound the whistle or ring the bell or give any other signal by which the deceased might have been warned of the near and dangerous approach of the train; and that they failed to have stationed at the front end of the foremost car going northward on said train at the time of the killing a brakeman or switchman to be on the lookout for persons on the track so that the engineer, thus informed might have been enabled by stopping said train to have averted injury to persons on the track as required by the rules of said company, and that the train was not equipped with air brakes connecting the cars with the engine with a whistle attached so that the train might be stopped in time to avert injury to persons on the track; that the train was not being operated with a sufficient crew as required by law and by reason of its negligent and careless operation by defendant's employés and their failure to comply with defendant's own rules and the laws of the state the death of the deceased was caused. Following this is the usual prayer.

After a general denial the answer avers that the deceased went...