Caldwell v. Payne

• Citation: 246 S.W. 312
• Decision Date: 06 December 1922
• Docket Number: No. 22881.,22881.
• Parties: CALDWELL v. PAYEE et al.
• Court: United States State Supreme Court of Missouri

246 S.W. 312

CALDWELL v. PAYEE et al.

No. 22881.

Supreme Court of Missouri, in Banc.

December 6, 1922.

Motion for Rehearing Denied December 20, 1922.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Robert B. Caldwell against John Barton Payne and others. From a judgment for plaintiff, defendants appeal. Affirmed as to defendant named, and reversed as to the others.

N. S. Brown and Homer Hall, both of St. Louis, W. W. Davis, of Chillicothe, and S. J. & G. C. Jones, of Carrollton, for appellants.

Mytton & Parkinson, of St. Joseph, for respondent.

SMALL, C.

I. Suit for personal injuries received at the crossing of the Wabash Railroad with Humbolt avenue in the city of St. Louis, on December 3, 1918. The petition alleges that the defendant Breusch was the engineer, Camplin the conductor, and Bennett the brakeman in the employ of the defendants Director General of Railroads and Wabash Railroad Company at the time the accident occurred; that Humbolt avenue ran easterly and westerly across the railroad yards and tracks of the Director General and railroad company; that on the 3d of December, 1918, defendants caused an engine and train of freight cars to be stopped across Humbolt avenue, and disconnected the train so as to leave an opening between the cars for persons passing on Humbolt avenue to pass through; that on said day, while plaintiff was passing through said opening, the defendants negligently caused and permitted said train and the parts thereof to move across Humbolt avenue without placing upon the ends of the cars where said train was cut any lights or signal device to warn travelers of the presence of said cars upon said crossing, without having any person at said opening to warn pedestrians that they were about to move across said avenue, and carelessly caused said cars to be moved without any signal by whistle or otherwise, whereby plaintiff was run over and his right arm crushed so that it was necessary to amputate the same, for which plaintiff prays for damages in the sum of $60,000. The answers of defendants, besides general denial and contributory negligence, pleaded want of jurisdie-on, and that suit was not brought in county required by president's order. The reply was general denial and request for substitution of Presidential Agent for Director General as defendant.

Plaintiff's Evidence. Plaintiff, Robert B. Caldwell, testified on his own behalf:

That he was 42 years of age. That he was injured December 3, 1918, about 8:15 in the evening. He had been previously a fireman on the Burlington Railroad, the last 11 years was an engineer. He resigned from the Burlington November 22, 1918. The night of his injury he was going to the Burlington round-house in North St. Louis to get his service letter, a letter which the Burlington gave its employees upon their resignation in case their employment had been satisfactory. He had run into St. Louis for a good many years, and was acquainted with the crossing of Humbolt avenue over the Wabash tracks. Humbolt avenue runs from Broadway east to the river. The Burlington roundhouse was just south of the east end of Humbolt avenue; he was going the only direct route to the roundhouse. There were 20 or 25 tracks across Humbolt avenue. The train which injured him was on one of the tracks near the middle. Had to cross several tracks before he got to it. There was a space of 10 or 12 feet between the cars. He was going east on the crossing toward the roundhouse. Before he started through between the cars be stopped and looked and listened, and did not hear or see anything, then started through. It was dark, but the evening was clear. On a night like that a bell could be heard a half mile easily, and a whistle could be heard plainly a mile or more. There was no one at the opening between the cars. Just as he got middle ways of the crossing the cars moved quickly and hit him here (indicating), turned him around, and threw him outside of the rail, and the wheel caught his right arm on the rail, before he could get up, and cut it off. No bell rang and no whistle was blown on any engine attached to the string of cars when it moved up. There was no light on Humbolt avenue at the place where he was injured in any one's hands, and no one there to give warning. He "halloed," and after quite a bit the train stopped, and a man came to him, and he talked with several persons afterwards and told them how it happened, namely, that as he was passing through there the cars hit him and knocked him off his feet, a drawbar hit him and that turned him around, and he fell on his hands and knees, and the train caught him on his right arm before he could get up. He went to the hospital, where he remained about six weeks. Suffered great pain, and has continued to suffer the biggest Part of the time since then. The leaders draw and pain him, right at the end of the arm where it was taken off. He can feel his fingers hurting right on the end of his arm. After he picked himself up his hand was just hanging there. It was amputated after he went to the hospital, three or four inches below the elbow. Before injury he was earning $200 per month on an average. Has not been able to work since. Helped his youngest brother a little on the farm.

Cross-examination: Supposed the railroad was being operated by the Director General and the Wabash Railway Company. He had been in the employ of the government on the Burlington. The Wabash employees were in the employ of the government, the same as the employees of the Burlington were after the government took over the operation of the railroads. He denied having a conversation with McRae, shortly after the accident, and telling him that he was injured while attempting to pass between the ears over the coupler, or that he was trying to crawl under there between the cars. He told Fitzgibbon haw he was hurt, but he did not see Fitzgibbon write down any statement he made. He never put his hand on a pencil and mode a mark to any statement. Fitzgibbon did not have any paper, did not do any writing, and did not read over anything to him. That Exhibit 1 shown him, being signed, "Robert B. Caldwell, his mark," was not signed by him, nor by his authority, and neither that nor any other paper was read over to him. He had been acquainted with the crossing where he was hurt for 16 years. The Burlington used to operate in there. Had crossed there two or three weeks before. Well acquainted with street and tracks. "Wabash trains were made up on those tracks and taken in and out of the city. They were backed out. Had known that several years. Had' frequently walked over those tracks, going north and south over Humbolt avenue. Knew they were working there in the yards all the time. That was the purpose of the tracks. Did not know trains were made up at that time of day. Experienced in getting off and on trains, but seldom in motion. Humbolt avenue is narrow street at this crossing, possibly 14 or 15 feet. Main part of train was north, engineer's end. Other end of train was south of crossing. Did not know how many cars were on that end. It was dark, but notwithstanding could see the cars. Opening was 10 or 12 feet. No sidewalks. Street was not paved. Aimed to go about middle ways through opening. Was 5 or 6 feet from car when started through. Cars were standing still. The car struck him from the north. Did not get on track and stop between ears. Did not hesitate until he started through. Hesitated when about 2 or 3 feet west of the train and 4 or 5 feet from the end of the car when he started through. Did not stop after he started through till he was struck and knocked down. Walked at moderate gate, 3 or 4 miles an hour. Drawbar of the car hit him on the hip or side. Car was backing very fast when lie saw it. Standing dead still when he started through. Judged car was going 10 or 12 miles an hour when it hit him and had traveled 5 or 6 feet. Car was right against him when he saw it moving. He was looking front, it was dark. North end of train was in motion. The noise of the car when it was right on him attracted his attention. It was right against him when he heard it. He was watching the train anti watching where he was going as good as he could. Tried to jump east. Hit him before he got to make the jump. Could not jump because the car hit him and knocked him down. Discovered it about the time it hit him. There is supposed to be a man there to couple the cars and also to watch the crossing. He connects the hose after he makes the coupling. Signals are given to engineer with a lantern by night, not always by man on top of car, sometimes by brakeman in rear. That was a very busy yard.

Redirect: "Q. Are you acquainted with the universal custom on all railroads where trains are cut for crossing as to the method and warnings that are given? A. Yes, sir. * * * Q. What is the custom in opening and closing cars at such places, with reference to having a man present? A. There should be a man there to guard the crossing and keep any one from passing between. Q. What is the custom with reference to causing a bell to be rung and a whistle to be blown? A. The bell should in rung, and the whistle sounded. Q. Is that tin universal custom? A. Yes, sir. By Mr. Jones I move to exclude the testimony of the witness with reference to custom, for the reason that it is improper and does not shed any light of this case and is not pleaded or relied on as grounds of recovery."

Roy Stephenson, defendant, testified for plaintiff:

That he was fireman on train that moved across Humbolt avenue the night plaintiff was hurt, and was working for the Wabash Railroad company and the Director General. Trait was cut or divided at Humbolt avenue; always cut there. Breusch was engineer. Bennett was the brakeman. Camplin was conductor Over defendants' objection the witness testified as to the custom of having a man present at such opening: "We are always expected to...