Butts v. Gaar-Scott & Company

• Decision Date: 05 March 1912
• Citation: 145 S.W. 120,164 Mo.App. 307
• Parties: LOUIS H. BUTTS, Respondent, v. GAAR-SCOTT & COMPANY, Appellant
• Court: Missouri Court of Appeals

145 S.W. 120

164 Mo.App. 307

LOUIS H. BUTTS, Respondent, v. GAAR-SCOTT & COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 5, 1912

February 9, 1912, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

AFFIRMED.

STATEMENT.--This is an action by plaintiff against defendant, appellant, to recover damages for personal injuries sustained by him. Plaintiff was a locomotive engineer in the employ of the St Louis & San Francisco Railroad Company, hereafter referred to as the Frisco. At the time of the accident he was in charge of a locomotive of that company, driving his engine attached to freight cars over the tracks of the railroad company from the town of Eureka, Missouri, and beyond, the city of St Louis, which is about twenty-seven and one-quarter miles east of Eureka, being the destination of his train. When about three-quarters of a mile east of Eureka and at a crossing of a public road called the Blakey road, seeing that his engine was about to run into a grain separator, which was directly across the track at this crossing, plaintiff jumped through the cab of his locomotive, with the result that both of his legs were broken between the ankles and knees and it became necessary to have both amputated immediately below the knees making him a cripple for life.

The grounds of negligence averred in the petition are, first, to state it generally, negligently and carelessly driving the separator and engine, hereafter called traction engine, and which was drawing the separator, on to the track of the railroad, whereby the separator became stuck on the tracks between the rails.

Second that after the separator had been so negligently pulled upon the railroad track, the employees of defendant negligently and carelessly allowed the same to remain upon the tracks for about twenty or twenty-five minutes, although having a sufficient number of men immediately at hand, and sufficient means and appliances available readily and quickly to have removed the separator from the tracks and to have avoided the collision.

Third that after the separator had been so negligently pulled and left upon the track of the railroad as before stated, that although defendant and its employees well knew or could have known with the exercise of ordinary care that trains were due to pass over and along the line of railway at frequent intervals and that they did so pass and that the separator in its position across the tracks, was liable to be run into by trains operated upon the railroad and injure the employees operating them and passengers upon the train, and to injure the trains, and knew that the separator, as an obstruction upon the track, was a dangerous menace to life and property, defendant and its employees in charge of the separator negligently and carelessly failed to notify the train dispatcher at Eureka and negligently and carelessly failed to send or attempt to send a flagman out in each or either direction to warn approaching trains of danger, and negligently and carelessly failed to give or make any ordinarily careful attempt to give any warning to approaching trains, though there were ample means and time with and within which warning could have been given to such trains, and negligently and carelessly allowed the separator to remain upon the track and obstruct the passage of trains for about twenty or twenty-five minutes after the separator had become jammed in the tracks, thereby causing the accident. It is further averred that the train was running at its usual rate of speed; that immediately upon seeing the obstruction plaintiff applied the emergency brakes with full force, reversed the engine and did all in his power to check the speed of his train but seeing that a collision was inevitable and that the engine was liable to be derailed and the train wrecked, and believing that his life was in imminent danger by reason of being about to run into this obstruction, he sprang from the window in the cab of the engine and struck the ground with great force and violence. Averring his injuries as before stated and what his wages had been and that by the accident he was disabled from following his vocation as an engineer, he prayed damages in the sum of $ 40,000.

The answer of defendant, admitting its incorporation and that on the day of the accident it was the owner of the traction engine and separator, and that while these machines were under the charge and control of defendant's agent, one Johnson, an eastbound freight train of the St. Louis & San Francisco Railroad Company collided with the separator at the crossing, it denies each and every other allegation in the petition. As a further defense, defendant pleads the contributory negligence of plaintiff in that he failed to heed the signals given by defendant's servants for the purpose of flagging the train and failed to look ahead and keep proper watch to see that the track at the crossing of the public highway was unobstructed and ran the train at a high and dangerous rate of speed as it approached the crossing of the public highway and negligently jumped from the train while the same was running at a high and dangerous rate of speed.

The reply was a general denial of the new matter in the answer.

The cause was tried before a court and a jury. The evidence is quite voluminous. Probably the most intelligible way of stating the case is to commence with defendant's part of it. On the day mentioned, one Johnson, a district agent for defendant, who had been in the business of selling and handling traction engines and separators for some thirty years, left St. Louis and went to the farm of a Mr. Cihak situate on or near the Blakey road, to take an engine and separator from that farm into Eureka, the intention being to load and ship the engine and separator back to defendant's factory at Richmond, Indiana. He was accompanied by his engineer, a Mr. Nevin, and also by Mr. Cihak, whom he had engaged to furnish fuel and haul water to fill the boiler, and they fired and steamed up. They also had a wagon and team in charge of a Mr. North, the wagon carrying water, fuel, a log chain and possibly other material. A son of Mr. Cihak, a boy about fourteen years old, was also with the party. The traction engine was connected up with the separator and after steam was up they started out along the road toward Eureka. The water wagon referred to was being driven ahead of the engine. They were going along the Blakey road in St. Louis county, which road runs past Cihak's farm toward the Frisco, then turning to the west runs along the side of the Frisco tracks for about 600 feet, and turning northwardly crosses those, not at a right angle but diagonally, and then takes on up a slight rise to the Missouri Pacific Railway Company's tracks, and crossing those about a quarter of a mile north of the Frisco, goes on west to Eureka. There is a slight rise from the Blakey road to the railroad at the crossing of the Frisco. About a quarter of a mile before the Frisco reached this crossing, as it leads east from Eureka, it curves sharply around a slight hill, but from Eureka to the curve the tracks are straight. The crossing is about a quarter of a mile west of the beginning of the curve. When the traction engine and separator approached the crossing, Johnson and Cihak walked up to it and saw it was clear. Whereupon the engineer of the traction engine, being told to come ahead, steamed up and started toward the crossing. Reaching the crossing the traction engine passed safely over the tracks, but one of the wheels of the separator slid off of a plank inside of the south rail and became jammed. The traction engine still pulling, broke off a clip on one side of the axle, throwing the strain on the remaining clip, and forcing one of the front wheels under the body of the separator, so that the separator became immovable. The faces of these wheels of the separator are eight inches; the engine, an eighteen-horse power one, weighs about 1800 pounds, the separator about 6000 pounds, was about ten feet high from the ground to the top of the front end, and from front to rear is twenty-five feet and one inch over all, the body, from front to rear axles being fourteen feet, five and one-fourth inches. The tongue of the separator is twelve feet long and is attached to the front axle of the separator by two forks or "clips." As soon as the men in charge found the wheel was caught they disconnected the remaining clip. After doing that they grabbed hold of the front axle of the separator and tried to swing it back into position so that they could back the separator off the track if possible. They found they could not do that because the left wheel was wedged and they could not swing it, Johnson, Cihak, Nevin and a Mr. Peppers all pulling at it. Johnson then called to North to bring down the log chain from the wagon which was across the tracks and up on the hill. North threw it out of the wagon and Cihak took it down to the separator. They started to attach the chain to the front axle of the separator and Johnson called to North to bring the team down, that is the horses attached to the wagon. North refused to bring the horses, as just then they heard a train which they first thought was on the Frisco tracks, but which proved to be on the Missouri Pacific tracks. As that train passed east they heard another train, and saw the men who were up on the hill between the Frisco and the Missouri Pacific tracks pointing toward Eureka and heard them hallooing to them, and they then saw the smoke of another train coming toward them from the west of Eureka on the Frisco track. At this time the traction engine was probably twenty feet north of the track and the separator projected over the track...