Boyer v. Baldwin

• Citation: 106 S.W.2d 21
• Decision Date: 03 May 1936
• Docket Number: No. 18779.,18779.
• Parties: BOYER et al. v. BALDWIN et al.
• Court: Court of Appeal of Missouri (US)

106 S.W.2d 21

BOYER et al. v. BALDWIN et al.

No. 18779.

Kansas City Court of Appeals. Missouri.

May 3, 1936.

Rehearing Denied May 24, 1937.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Action by Freddie Boyer and another, minors, by their guardian, Birdie Boyer, against L. W. Baldwin and another, as trustees of the Missouri Pacific Railroad Company. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Thomas J. Cole, of St. Louis, L. J. Bishop and D. C. Chastain, both of Butler, Ray L. Shubert, of Harrisonville and Sparrow, Patterson, Chastain & Graves, of Kansas City, for appellants.

W. W. McCanles, of Los Angeles, Cal., Earl H. Bowles, of Kansas City, and Will H. Hargus, of Harrisonville, for respondents.

CAMPBELL, Commissioner.

The defendants' south-bound freight train, operated upon their Fort Scott track in the south part of Rich Hill, Mo., struck and killed Frank Boyer. The infant plaintiffs, Freddie Boyer and Dorothy Boyer, are children of Frank Boyer, and they, through their guardian, brought this suit to recover for the death of their father, obtained a verdict and judgment in the sum of $7,000, from which the defendants have appealed.

The defendants maintained double tracks extending south from their yards in Rich Hill. The east track is called the Joplin track and the west track is called the Fort Scott track. These tracks parallel and are about 10 feet apart.

The defendants' fireman, Jaques, was plaintiffs' first witness. The substance of his testimony is that when he first saw Boyer the latter was walking south upon the west end of the ties of the east track and 1,000 to 1,200 feet ahead of the train; that Boyer "had his head down"; that from that time he watched Boyer because, "I blew out the engine and that makes a lot of noise and he never looked back to see what it was"; that when the train was about 60 feet north of the place of accident Boyer left the east track, walked to the west and directly in front of the engine; that when he saw Boyer start toward the west track he directed the engineer to apply the emergency brakes; that the order was obeyed and the train brought to a stop in a distance of about 160 feet; that although the whistle was sounded several times and the bell was ringing Boyer did not look "up or back" nor indicate that he was aware that the train was approaching; and that the train was going 25 miles per hour. Concerning his duties this witness said that the rules of defendants required him "to be on the lookout forward" and to report to the engineer the presence of any obstruction on the track.

The plaintiffs' witness John Robinson said that, on the day of the accident while he was standing 75 to 100 feet west of the railroad track, Frank Boyer came from the north walking upon the east end of the ties of the west track and continued walking thereon until his view of Boyer was obstructed by the engine; that at that time Boyer was 20 to 30 feet south of a street crossing and 200 feet south of the witness; that the train struck and killed Boyer and dragged his body a distance of about 300 feet. The evidence of Robinson further shows that there was a strong wind from the south; that steam did not escape from the engine nor was the whistle sounded at any time, and that the bell was not ringing until "about the time the brakes went on."

The fireman, engineer, and other witnesses testified in effect that Boyer was struck and killed at a point 500 to 600 feet south of the place where Robinson said the fatal accident occurred.

The plaintiffs rely for recovery solely on the humanitarian theory of negligence.

The defendants contend that the court erred in refusing their instruction in the nature of a demurrer to the evidence. In ruling the question as to whether or not the case was one for the jury we must be mindful of the rule that it was within the province of the jury to believe all of the testimony of any witness or none of it, accept it in part and reject it in part. The jury under the rule could believe that part of the evidence of the fireman to the effect that when he first saw Boyer the latter was 1,000 to 1,200 feet ahead of the engine walking south, "had his head down," did not look "up or back" nor indicate that he was aware of the fact that the train was approaching; that the train could have been stopped in a distance of 160 feet; and disbelieve the evidence of the witness to the effect that Boyer suddenly left a position of safety and walked into the path of the engine. From the evidence of Robinson the jury could find that Boyer after traveling south upon the west track a distance of 200 feet was overtaken by the engine; that Boyer was walking into a strong wind and indicated by his conduct and manner that he did not know the train was coming; and that no alarm signals were sounded until the very instant of the collision. It is evident that when the engine was directly east of Robinson he saw a situation which caused him to believe that Boyer was in imminent peril, and that the latter did not know of the danger. The jury could very well find that the things which Robinson saw were seen or in the exercise of due care should have been seen by the fireman in ample time to have caused the train to be stopped before it took the life of Boyer. Dutcher v. Wabash Railroad Co., 241 Mo. 137, 171, 145 S.W. 63. The situation called for action on the part of the fireman. He chose to watch. Watching in the circumstances shown was not due care, at least the jury could so find. In this connection the defendants say that Robinson did not see the engine strike Boyer and, for that reason, there was no evidence save the evidence of the fireman showing that Boyer "was in a position of peril and that he was oblivious to the peril prior to the accident." The fireman said the train was going 25 miles per hour. The result of a simple calculation demonstrates that in less than one second after the engine came between Robinson and Boyer the latter lost his life. Hence, the jury could say that Boyer was walking upon the ties at the time the engine struck him. Lynch v. Chicago & Alton Ry. Co., 208 Mo. 1, 20, 106 S.W. 68.

It is plain, we think, that the evidence favorable to the plaintiff was sufficient to prove the essential elements of a humanitarian case. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Dutcher v. Wabash Ry. Co., 241 Mo....