Burtch v. Wabash Ry. Co.

• Decision Date: 30 November 1921
• Docket Number: No. 21755.,21755.
• Citation: 236 S.W. 338
• Parties: BURTCH v. WABASH RY. CO.
• Court: Missouri Supreme Court

236 S.W. 338

BURTCH v. WABASH RY. CO.

No. 21755.

Supreme Court of Missouri, in Banc.

November 30, 1921.

Rehearing Denied December 30, 1921.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Clara Grace Burtch against the Wabash Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff file remittitur.

This action was commenced in the circuit court of Jackson county, Mo., on February 23, 1918, by plaintiff, Clara Grace Burtch, as administratrix of the estate of her husband, Arthur C. Burtch, deceased, who was killed in said county between 10 and 11 o'clock at night on September 9, 1917, while in the service of defendant as a switchman.

On the night of his death he was one of a switching crew engaged in moving a freight train of 23 cars from the Wabash yards, near the old Union Depot site, in the West Bottoms, of Kansas City, Mo., and destined to other yards across the state line in Kansas. The engine was backing on the east end of the drag of cars, shoving the same westward over defendant's track. The principal part of these yards lies east of Santa Fe street, but there are two switch tracks which extend across and on west of Santa Fe street crossing the next street thereto, Mulberry, and then on west across Hickory street. Paralleling these two Wabash switch tracks, there was also a switch track of the Missouri Pacific Railroad Company. All of these streets crossed by said switch tracks, viz. Santa Fé, Mulberry, and Hickory streets, run north and south, and are crossed by said switch tracks practically from east to west. In Mulberry street, running north and south, were two street railway tracks, and at the crossing of these railroad switch tracks and the said street railway tracks was a solid manganese steel crossing, all in one piece, with grooves for the flanges of the wheels on the railroad engines and cars, and also grooves for the flanges on the wheels of the street railway cars passing over such crossing. It appears from the evidence that the train moved west from the Wabash yards east of Santa Fé street to Hickory street, something over two blocks away, at a speed of from four to six miles per hour. When the train started west from said yards, with the engine pushing it, the foreman of the switching crew was on top of a car at the front or west end of said train. One of the switchmen was located in the middle of the train, and deceased, Arthur C. Burtch. was at the rear end of same, near the engine. When last seen alive, the deceased was walking west on top of the second car from the engine, as the train was leaving a point about Santa Fe street, one block east of Mulberry street. A few minutes later his body was found on the south side of the track at Hickory street, where the train stopped. The headless body was lying south of the track on which the train was standing, and the head was found fastened in between a wheel and the rods of a car, which stood a short distance west of where the body was found.

Plaintiff, among other things, alleges in her petition:

"That as the car upon which said decedent was riding reached and passed over said Mulberry street and over the defective track hereinafter complained of the said car was caused to violently dip, surge, sway, rock, and jerk, thereby dislodging said decedent from his position on said car and causing him to fall therefrom and to be dragged and run over and fatally injured, and that said decedent died as a result of said injuries immediately thereafter and on said day.

"Plaintiff states that the defendant negligently and carelessly failed and omitted, at and prior to said time, to have, furnish, keep, and maintain its tracks, roadbed, ties, and their attachments and supports at said crossing in said Mulberry street in a reasonably safe condition for the pasasge of trains and the employees thereon in passing thereover, in that the said tracks, joints, roadbed, ties, and their attachments and connections in said Mulberry street and at said crossing were at all of said times worn, insufficiently supported, insufficiently braced, rough, chipped, and broken, out of repair, dangerous, defective, and not reasonably safe for use, so that trains and cars, in passing thereover, by reason of said facts, were caused to dip, surge, sway, rock, and jerk, and were liable to throw and cause persons to fall therefrom, all of which facts and conditions were known, or by the exercise of ordinary care could and would have been known, to defendant at all of said times and long enough prior thereto for defendant, by the exercise of ordinary care, to have repaired and remedied said dangers and conditions, and have prevented said disaster and the death of said decedent, all of which defendant negligently and carelessly failed and omitted to do. Plaintiff states that said dangers and conditions were unknown to and were not appreciated by said decedent at any of said times. Plaintiff states that said disaster and the fatal injury and death of her said husband, the said decedent, Arthur C. Burtch, were directly caused and brought about by the negligent and careless acts and omissions and conditions above set out and complained of."

Deceased was 29 years of age at the time of his death. His wife was 29 years of age at the time of trial in March, 1919. Plaintiff and deceased, at the time of the latter's death, had a daughter, who was then about 2 years of age. The average wages of deceased per month, at the time of his death, was $115.

As defendant is insisting that its demurrer to the evidence at the close of the case should have been sustained, we deem it advisable, in order to avoid repetition, to consider the remaining facts in connection with each branch of the case as it is reached for our consideration. The instructions given and refused, as well as the rulings of the court during the progress of the trial, will be considered, as far as necessary, in the opinion.

Plaintiff's instruction C and defendant's instruction No. 8 were as follows:

C. "The court instructs the jury that the jury have the right to take into consideration all the circumstances and physical facts shown in evidence, and, if the testimony of any witness is in conflict with the physical facts, the jury have the right to disregard such testimony, if any, so conflicting with the physical facts. In this connection the jury are further instructed that the jury have the right in making up their verdict, to draw all reasonable inferences arising out of and reasonably deducible from the circumstances, and physical facts shown in evidence, and if the jury find and believe from the evidence and the circumstances and physical facts shown in evidence that the crossing and track referred to in evidence, in Mulberry street, at the time and place in question, were unsafe and dangerous for use, if you so find, as set out in the other instructions herein, and that defendant knew, or by the exercise of ordinary care could have known, of such conditions, if any, in time, by the exercise of ordinary care, to have repaired said track and crossing and remedied said conditions, if any, before decedent was injured, and that defendant negligently, if you so find, failed so to do, and that defendant was guilty of negligence as set out in the other instructions herein, which negligence, if any, on the part of defendant, directly caused and brought about the injury and death of decedent, if you so find, as set out in the other instructions herein, then you are instructed that it is not necessary to a recovery by plaintiff in this case that she be required to produce eyewitnesses to the fall, if any, and dragging, if any, of decedent."

VIII. "The jury is instructed that, if you find and believe from the preponderance of the evidence that Arthur C. Burtch left the car on which he was riding et or about the switch stand mentioned in evidence, then you are instructed that there is no evidence in this case showing with reasonable certainty that his death was due to any defective condition of the track on Mulberry street crossing, and your verdict must be for the defendant."

Defendant contended that instruction C authorized the jury to found inferences upon inferences, and that the latter part was a clear comment on the evidence.

On March 13, 1919, the jury found the issues in favor of plaintiff and assessed her damages at $15,000. Judgment was entered in due form on said verdict. Defendant in due time filed its motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by it to this court.

N. S. Brown, of St. Louis, Mord M. Bogie and Sebree & Sebree, all of Kansas City, and Homer Hall, of St. Louis, for appellant.

Burr S. Stottle and Atwood, Wickersham, Hill & Popham, all of Kansas City, for respondent.

RAILEY, C. (after stating the facts as above).

1. It is contended by appellant that its demurrer to the evidence at the conclusion of the whole case should have been sustained. Several questions are presented in this contention which will be disposed of separately. The first arises as to the sufficiency of the evidence to sustain the charge that defendant was guilty of negligence in failing to maintain its crossing in proper repair on Mulberry street. Before considering this subject, it is well to keep in mind certain well-settled principles of jurisprudence in this state. In all actions at law, where plaintiff has introduced substantial testimony in support of her case, the appellate court is powerless to interfere with a verdict in her favor, on the ground that it is in conflict with the weight of the evidence. It is equally as well settled in this jurisdiction that in passing upon a demurrer to the evidence the plaintiff is entitled to the benefit of every reasonable inference which a fair-minded jury of ordinary intelligence might legitimately draw from the evidence in the case.

It...