Calhoun v. Schaff

• Decision Date: 08 February 1921
• Docket Number: No. 16221.,16221.
• Citation: 229 S.W. 277
• Parties: CALHOUN v. SCHAFF.
• Court: Missouri Court of Appeals

229 S.W. 277

CALHOUN v. SCHAFF.

No. 16221.

St. Louis Court of Appeals. Missouri.

Argued and Submitted November 10, 1920.

Opinion filed February 8, 1921.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

Action by John Calhoun, administrator of the estate of Clarence E. Calhoun, deceased, against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company, a corporation. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. W. Jamison, C. A. Newton, and Carl S. Hoffman, all of St. Louis, for appellant.

Walter A. Kelly and J. B. Garber, both of St. Louis, and W. W. Herron, of Jefferson City, for respondent.

REYNOLDS, P. J.

Plaintiff, administrator of the estate of his deceased son, Clarence E. Calhoun, brought this action to recover damages for his death at the hands of the defendant railroad corporation. Alleging that decedent was 22 years old, and unmarried at the time of his death, and that he left surviving him as his next of kin and heirs at law his father and mother, and that they were dependent upon him for their support, and that during his lifetime decedent did support them, the petition avers that on a day named decedent "being lawfully and rightfully thereon, was walking southward on the track of the company at or near the North St. Louis Station thereof, * * * the track at said point running north and south; that the track at that point and north thereof was level and straight for approximately one-half mile, and that there was nothing to obstruct a plain view for that distance, and that the track at that point had for many years been used by employés of the defendant, and other pedestrians as a footpath or walkway with the knowledge and tacit consent of the defendant. That at the time and place above mentioned defendant ran and operated one of its south-bound trains southward upon the track over which decedent was walking, and the servants of the defendant in charge of the train at that time saw, or, by the exercise of ordinary care, could have seen, decedent upon the track and that he was in danger of being struck by the train and was not conscious of the sudden approach of the train, in time to have slowed up the train, or have stopped it, or to have given decedent notice and warning of its sudden approach and thereby avoided striking him, but negligently failed to stop, slow up or slacken the speed of the train or to give any notice or warning of its sudden approach, and negligently run and operated the train at a reckless and dangerous rate of speed, to-wit, in excess of 40 miles an hour," and thereby ran into and struck decedent, causing his immediate death. Judgment is asked for $10,000.

The answer, after admitting the incorporation of the road and that defendant is the receiver, alleges contributory negligence on the part of the decedent. This latter was denied by a reply.

At a trial before the court and a jury a verdict was returned in favor of plaintiff in the sum of $3000, from which, after proper motions and steps taken, defendant has duly appealed.

The principal witness for plaintiff, one Soeder, testified that he and the decedent were car carpenters in the employ of the Chicago, Burlington & Quincy Railroad Company (hereafter referred to as the Burlington), that company and the Missouri, Kansas & Texas Railway Company (hereafter referred to as the Katy), using the tracks in common. On the morning of the accident witness and decedent were sent out to Spanish Lake, a station on the Burlington and defendant railroads, to repair a car belonging to the former. They met a little south of Humboldt Avenue, which is in block 7200 north of the city of St. Louis, and started from there together down the road to the station, intending to take the car there and go up to Spanish Lake. The station of the Burlington at that point is called the North St. Louis Station, which is near Carrie Avenue in the 6200 block north and a little over three-quarters of a mile from Humboldt Avenue. When the decedent and witness met at Humboldt Avenue, they at first walked east to get over between the main line and the switch or lead track of the railroads, and then walked south, intending to reach the North St. Louis Station which was about three-quarters of a mile away. Quoting this witness, he testified:

"Well, we started from Humboldt Avenue. We walked east and we got over between the main line and switch lead. I got over and pulled out my watch. I looked at it. I said to Calhoun, `Katy has gone in.' That was twenty-five minutes to eight. We walked down about four or five hundred feet until we come to the cross-over; that is where the freight and light engines cross from the switch leads to the main lines. We stepped over that and got up on the edge of the ties. I was walking to the right of Calhoun; I looked around again. I didn't see anything. We kept walking. Just as we got right about the station he stepped over, and as he did I stepped back a little bit, and I saw this train coming. I hallooed at him, but it was too late; it hit him."

Witness further testified that decedent was instantly killed.

This witness also testified that where they walked was over to the track; walked south on the track; walked south before they got on the track about 500 feet; that was between the main line and the switch lead of the Burlington tracks, over which trains of the Katy run. It was a passenger train of the Katy that hit Calhoun. Soeder further testified that he and the decedent walked about four or five hundred feet after they got on the tracks, walking between the main track and the switch track until they came to the cross-over where the freight and light engines cross from the switch leads to the main line; they stepped over that and got up on the edge of the ties. They had not walked south on the ties at first; had walked about five hundred feet south to the cut-off before decedent got on the ties, and at the cut-off he got on the edge of the ties, right on the outside of the rail. He walked on these ties, on the edge of the track, about 600 feet before he was hit. He had not been off the ties from the time he first got on them at the cut-off until he was hit, and in the meantime Soeder had looked back, making the remark to the decedent, "Katy has gone in." The train of that road was due there about 7:25 and was late that morning. After Soeder got over the cross-over, he looked back again and he was on the right of decedent, alongside of him. At that point the Burlington track is about 15 feet from the switch track. It had been raining all morning and there was water between the two tracks, which was the reason the men got on the ties. There was no way to get from Humboldt Avenue to the North St. Louis Station at Carrie Avenue, except by going along the tracks there, and that way was in common use by many people all day long, walking along the tracks down to the station. This witness testified that he did not hear any whistle or bell as the train came south, and that the track is straight there north of the St. Louis Station for three-quarters of a mile or more. The decedent was hit between 40 and 50 feet from the station, and, according to the estimate of witnesses, the train was running 45 or 50 miles an hour.

On cross-examination Soeder testified that they had started along the tracks right...