Bond v. St. Louis-San Francisco Ry. Co.

• Decision Date: 11 October 1926
• Docket Number: No. 25564.,25564.
• Citation: 288 S.W. 777
• Parties: BOND v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

288 S.W. 777

BOND v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 25564.

Supreme Court of Missouri, Division No. 1.

October 11, 1926.

Transferred to Court en Banc November 15, 1926.

Appeal Dismissed by Appellant December 8, 1926.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Robert Bond against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that plaintiff file a remittitur, otherwise reversed and remanded.

E. T. Miller, of St. Louis, H. W. Timmonds, of Lamar, Ward & Reeves, of Caruthersville, and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, and C. R. Cravens, of St. Louis, for respondent.

RAGLAND, P. J.

This is an action against a carrier for personal injuries to a passenger, alleged to have been caused by its negligence. The negligence is charged in the petition in the following language:

"Plaintiff states that the defendant failed and neglected its said duties, so that by reason of such negligence plaintiff was injured in the following manner and particulars, to wit:

"* * * On the early morning of September 1, 1922, at about 3:50 a. m., when defendant's said passenger train No. 805, carrying plaintiff therein as a railway postal clerk, reached and ran upon a certain trestle near Starland, in _____ county, Mo., on account of the carelessness and negligence of the defendant, its agents, servants, and employees, said south-bound passenger train was permitted and allowed to become derailed and wrecked, and said trestle was permitted, allowed, and caused to collapse under said train, thereby derailing same, and the coaches, including the mail car in which plaintiff was riding, were thereby caused, permitted, and allowed to be thrown and hurled from said track and trestle with great force and violence.

"* * * And the derailment of said train and mail car, and the striking thereof on the ground below said trestle, was so violent and severe that plaintiff was hurled and thrown towards the end of said mail car, and at and against the sides thereof, and iron bars and other fixtures and appurtenances therein, and that great quantities of mail and other heavy objects were thrown at and against and upon the plaintiff, and he was buried beneath the same, so that then and thereby plaintiff was severely bruised and injured."

The answer, so far as material, Is as follows:

"Defendant "* * * admits that it is a railway corporation, as pleaded in plaintiff's petition, and that it is the owner of, and engaged in the operation of, the line of railroad as set out in said petition, and was at the time and place in question operating its passenger train as a common carrier, as pleaded by plaintiff; admits that at the date mentioned in plaintiff's petition the plaintiff was in the employ of the United States government in the capacity of a railway postal clerk, and as such operated on defendant's passenger train, as alleged in plaintiff's petition; admits that while the plaintiff, as an employee of the United States government in the capacity of mail clerk, was on defendant's passenger train aforesaid, there was a wreck of said passenger train, and in which plaintiff was injured, but defendant denies that said wreck and injury to plaintiff aforesaid were caused by any negligence or carelessness whatever on the Part of defendant, its agents, servants, or employees, as pleaded in plaintiff's petition; and further answering, denies each and every other allegation, averment, and statement in plaintiff's petition contained. * * *

"* * * That there was no negligence on the part of the defendant, either in the construction or maintenance of said bridge or trestle, or in the equipment and operation of said train. But defendant alleges and avers that said wreck occurred, as alleged in plaintiff's petition, about 3:50 a. m.; that shortly before and in the immediate vicinity of said trestle, and of the territory drained by the stream over which said trestle spanned, there was an unusual, unprecedented, extraordinary rainfall; that it occurred at the time of night aforesaid and was such an unprecedented and extraordinary flood as to cause a precipitation of said flood water so rapidly and so forcibly and of such an amount as to destroy and wash out a part of the supports, bents, and structures of said bridge, and at such a time in the night and so near to the time the train attempted to cross over the said bridge, and the defendant, its servants and employees, did not know, and had no reason to suspect, that a part of said bridge had been destroyed; and that by reason thereof said bridges or trestle gave way as the train attempted to cross same and caused the wreck in question. But defendant avers that same was not caused by any act of negligence or carelessness whatever on the part of the defendant, its servants or employees, but was caused by an act of God."

On the trial below plaintiff offered evidence in support of the allegations of the petition, namely, that the mail car in which he was being carried by defendant was derailed and wrecked and he injured in consequence thereof; the principal part of the proof going to the extent and nature of the injuries suffered. Having made this proof, plaintiff rested.

The evidence offered by defendant to rebut the inference of negligence arising from plaintiff's proof tended to show the following facts:

On defendant's line of railroad from St. Louis to Memphis, Tenn., 97 miles from St. Louis, there is a bridge or trestle which carries its tracks across a deep ravine. The place is known as Starland. The bridge structure was described by defendant's chief engineer as follows:

"This model represents a pile trestle, which was the type of bridge in use at that particular place. A `pile trestle' is one in which the principal supports are piling. They are driven in bents. A `bent' is a cluster of pile driven side by side at right angles to the track a standard even distance apart, lengthwise of the track. The standard distance is 14 feet, center to center.

"There were eleven bents, or ten panels, the space between the bents being called panel. The trestle was 138 feet from end to end. Some of the bents were not quite 14 feet centers; they were driven a little closer than 14; the piling are driven side by side, as represented in this model by a steam pile driver that is propelled along the track. * * *

"These bents have placed on top of them a cap, which is a stick of timber 14 inches square and 14 feet long; through that cap there is a drive bolt goes down into the top of each pile; the bents are braced together to make them stiff and stable by what is termed `sash braces,' which are placed, usually, about halfway between the cap and the ground line, at right angles to the piling and bolted through; three-fourths inch bolts; iron bolts; all bolts being iron in this structure. They have other sway braces * * * above and below the usual brace, these braces being 3 by 10 longleaf yellow pine timber, and bolted through the pile. Then there is a line of strut braces to stiffen the bent in the center; those are 6 by 8 timbers, and are bolted to the pile at a distance — the top of the cap is placed, a line of stringers on each side supporting the rails, each line of stringers, being three stringers under a rail, 8 by 16 inches in diameter and 28 feet long. The stringers lap over two bents, and by placing one short stringer on the first bent in the middle it makes what is termed a lap joint over each cap. There is a line of these stringers, three on a side, under each rail. On top of them is placed the bridge ties; they are 6 by 8 by 9 feet long, spaced one-foot centers. That makes them closer together than the ordinary track ties."

The bents were numbered from north to south. The ravine was somewhat V-shaped. The depth to which the several bents were driven in the ground were as follows: No. 1, 26 feet; No. 2, 24 feet; No. 3, 22 feet; No. 4, 17 feet; No. 5, 10 feet; No. 6, 17 feet; No. 7, 20 feet; No. 8, 22 feet; No. 9, 22 feet; No. 10, 24 feet; and No. 11, 26 feet. Bents 5 and 6, which were in the center of the ravine, were driven to solid rock. The bridge was built according to standard trestle plans approved by the American Railway Engineering Association. The life of such a bridge is ten years; this one was built in 1918. An inspection of it on August 10th, 20 days before the wreck occurred, disclosed that the timbers were sound, except some sap rot on their exteriors which did not affect their strength, and the bridge was in good condition.

Defendant's train, 805, which left St. Louis for Memphis on the night of August 31, 1922, and which carried the mail car in which plaintiff was at work in the performance of his duties as a postal clerk, was what is termed an "all steel train." It consisted of an engine and seven cars — express, combination express and baggage, combination mail and passenger, chair car, and three pullmans. As it approached and started across the trestle heretofore described at about 3:50 a. m., the morning of September 1st, its equipment was working perfectly in every respect; it was going at the rate of 40 miles an hour, a speed well within the maximum prescribed for trains of that character moving over that particular part of the road. When the bridge was reached, the track ahead appeared to the engineer to be intact and in its usual position. When, however, the engine had gotten about halfway across the ravine, the bridge began to go down under it. The momentum of the train carried the engine and the first two cars over to the south bank, where they were derailed and thrown on their sides. When the mail car came to rest, the forward end was down in the ravine and the other upon the baggage car which had been driven under it. Defendant's railroad at the place where the wreck occurred paralleled the west bank of the Mississippi river and was 225 feet...