Bush v. Missouri, K. & T. Ry. Co.

• Decision Date: 05 March 1912
• Citation: 144 S.W. 1123,164 Mo. App. 420
• Court: Missouri Court of Appeals
• Parties: BUSH et al. v. MISSOURI, K. & T. RY. CO. et al.

144 S.W. 1123

164 Mo. A. 420

BUSH et al. v. MISSOURI, K. & T. RY. CO. et al.

St. Louis Court of Appeals. Missouri.

March 5, 1912.

Rehearing Denied March 23, 1912.

1. RAILROADS (§ 360)—FRIGHTENING TEAMS IN HIGHWAY — STARTING LOCOMOTIVES — NEGLIGENCE.

While the mere opening of the cylinder cock of a locomotive to permit escape of accumulated steam and water, and the sounding of its whistle in the usual way, before starting up, after a stop at a station, is not negligence, ordinary care should be taken to first ascertain whether there are teams in the highway close at hand, and, if any are discovered, due care should be taken to prevent injury to others by the frightening thereof.

2. APPEAL AND ERROR (§ 1015)—REVIEW— NEW TRIAL — VERDICT AGAINST WEIGHT OF EVIDENCE.

The granting of a new trial on the ground that the verdict was against the weight of the evidence may be reviewed and reversed, where there is no conflict in the testimony on the true issue, and no substantial evidence in the record to support a verdict for the party awarded the new trial.

3. RAILROADS (§ 360)—FRIGHTENING TEAMS IN HIGHWAY—STARTING LOCOMOTIVE—NEGLIGENCE.

Even though the engineer in letting off steam and sounding the whistle in starting up a locomotive at a station, frightening a team a few feet away, in the highway, was not negligent, he having from his position been unable to see the team, yet the fireman, on the side next to the highway, with an unobstructed view, was guilty of negligence, chargeable to the railroad company, in not looking for, and communicating to the engineer, the presence of a team.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by Charles Bush and another, minors, by Arthur L. Bush, their guardian and curator, against the Missouri, Kansas & Texas Railway Company and another. From an order granting defendant railway company a new trial, after a verdict for plaintiffs, plaintiffs appeal. Reversed and remanded, with directions.

James P. Boyd and Ragland & McAllister, for appellants. Lee W. Hagerman and J. M. Crutcher, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiffs on account of the alleged negligence of defendants. The Missouri, Kansas & Texas Railway Company and its locomotive engineer, John Kenna, are jointly sued as defendants. Plaintiffs are the minor children of Joseph D. Bush and prosecute the suit under the statute by Arthur L. Bush, their guardian and curator, for the wrongful death of their father, which, it is alleged, was occasioned through the joint negligence of the two defendants. On a trial of the issue, the jury awarded plaintiffs a recovery of $2,500 against defendant Missouri, Kansas & Texas Railway Company and gave a verdict for defendant John Kenna, its locomotive engineer. On the motion of defendant Missouri, Kansas & Texas Railway Company, the court set the verdict against it aside and granted a new trial, and from this order plaintiffs prosecute the appeal.

Plaintiffs' father, Joseph D. Bush, was thrown from his buggy and fatally injured because of the alleged fright of his team through the negligent handling of defendant's locomotive by John Kenna, its engineer, and the fireman thereon. It is said defendant's railroad runs through the town of Stoutsville almost directly east and west. Broadway, a public thoroughfare in the town of Stoutsville, runs parallel with defendant's right of way and along and adjacent to the north side thereof. At one place in Broadway a bluff of considerable proportion extends across the platted street so that it is impossible to drive over the same. In other words, a portion of Broadway, though platted and dedicated to public use, is not made into a street susceptible of travel, and therefore those passing east and west thereon drive around the bluff out of the platted street and upon defendant's right of way to within about 30 feet of its tracks. This portion of the thoroughfare, which by user and common consent has been extended over upon the railroad right of way to within about 30 feet of the railroad tracks, has been improved and occupied as a street for a number of years with the knowledge and consent of defendant railroad company. People constantly drive to and fro thereon identically as they do on other streets in Stoutsville, and it appears both defendants, the railroad and John Kenna, the locomotive engineer, knew of this practice.

Defendant John Kenna is a locomotive engineer in the employ of defendant railway company and engaged in the service of operating the locomotive which "draws" a local freight train. On the day in question, defendant's local freight with locomotive in charge of John Kenna attached and headed to the east was standing still on the tracks at the station when Joseph D. Bush, who was driving his team and buggy westward on Broadway, turned upon defendant's right of way, over the usual and customary traveled road, to within about 30 feet of the locomotive. As Bush thus approached the standing locomotive, the cylinder cocks were suddenly opened with the purpose to move the train forward, and great clouds of steam emitted therefrom. This sudden emission of steam, together with the loud hissing and buzzing incident thereto, frightened the team of horses so...