Cercido v. Manufacturers' Ry. Co.

• Decision Date: 04 May 1920
• Docket Number: No. 16023.,16023.
• Citation: 221 S.W. 434
• Parties: CERCIDO v. MANUFACTURERS' RY. CO.
• Court: Missouri Court of Appeals

221 S.W. 434

CERCIDO v. MANUFACTURERS' RY. CO.

No. 16023.

St. Louis Court of Appeals. Missouri.

May 4, 1920.

Rehearing Denied May 27, 1920.

Appeal from St. `Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Elizabeth Cercido against the Manufacturers' Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Nagel & Kirby and Allen C. Orrick, both of St. Louis, for appellant.

Sidney Tgorne Able and Charles P. Noell, both of St. Louis, for respondent.

BIGGS, C.

At about the noon hour on April 14, 1917, plaintiff's husband, William Cercido, received injuries by being run over by a switch engine owned and operated by defendant over its tracks running through a public alley in the city of St. Louis. As a result of the injuries then received, Cercido died on April 20th. This suit on behalf of the widow under the Compensatory Death Act followed, and resulted in a judgment for plaintiff for $5,000, from which an appeal has been duly perfected.

The case was submitted to the jury under the humanitarian doctrine now firmly established in this jurisdiction. Defendant complains of this, contending that the facts did not warrant the application of that rule, and that its demurrer to the evidence should have been sustained.

There were several allegations of primary negligence on defendant's part, but they were not sustained by the evidence and were in out of the case; the cause being submitted on the theory that plaintiff had negligently placed himself in a position of peril on defendant's track, but that defendant's servants in charge of its engine either saw, or by the exercise of ordinary care could have seen plaintiff upon the track in a dangerous situation in time, by the exercise of ordinary care, to have stopped the engine and thereby avoided injuring him.

Before considering the disputed evidence, it may be said that it is uncontradicted that the alley in question was a public one which was used by persons going to and fro, especially at the noon hour, and that deceased was run over at a point in this alley. It follows from this that there was a duty resting on defendant to look out for and keep a careful watch for persons near or on the track as its engine passed through the alley. It is not contended by plaintiff that defendant's engineer either saw, or could have seen, the deceased on the track in a position of peril, as the engine at the time was backing with the tender in front on a curve and the engineer's side of the engine was on the outer edge of the curve and his view of the track obstructed by the tender. As to the fireman who was on the opposite side of the cab from the engineer and on the inner edge of the curve, plaintiff asserts, not that he (the fireman) actually saw the plaintiff's husband in time to signal the engineer to stop, but that by the exercise of ordinary care he could have seen, him in time to cause the engine to be stopped and thereby avoid striking him.

At the time in question, Cercido was 42 years old, with good eyesight and hearing. Defendant's engine backing as stated, with the tender in front and without any load in the way of cars, was proceeding eastwardly at five miles per hour with its bell ringing. After crossing Eleventh street, a public thoroughfare, and south of Lynch street, it entered a private right of way of the defendant, then began curving to the southeast, diagonally crossing the public alley. Going east the track enters the alley 60 feet east of the east line of Eleventh street, crosses the alley diagonally, and leaves the alley 169 feet east of Eleventh street. The length of the track in the alley is about 100 feet. Where the tracks are in the alley there is a switch, at which plaintiff's husband was standing when struck by the engine. The alley is 20 feet% wide, and at the point where deceased was injured there is about 16 feet of the alley north of the track. From the east line of Eleventh street along the track of defendant to the point of the switch referred to is about 140 feet. At any time while the engine was traveling this 140 feet it could, according to the undisputed evidence, have been stopped in 17 feed.

There was only one eyewitness to Cercido's movements prior to being run over whose testimony is material. The witness, Edward Owens, testified as follows:

That on April 14, 1917, when the accident happened to William Cercido, he was hauling coal and was lying on the top of a coal car taking a rest, it being the noon hour, and out of which car he had been shoveling coke; that the car on which he rested was on a track south of the switch, and, according to other evidence, 27 feet from the switch.

Q. Now just tell us what you saw there when you first saw Mr. Cercido, and what he was doing. A. The first time I seen him he was coming out of the side of 1014 Lynch street, going out towards the alley, out from that lot. Then he turned west going up the alley, and then he started across the railroad track. Q. Now, where did he start to cross the railroad track? A. About at that switch. Q. Then tell us what you saw. A. Then he was standing there bent over; I don't know what he was doing. I happened to look up and heard the engine coming, and the bell was ringing, and I started to holler, but the train was so close on him, I couldn't holler. Q. Now, when you saw him there at that switch point, where was the engine? A. About to Eleventh street. Q. Eleventh street is west? A. Yes, sir. Q. It was backing up, was it, Mr. Owens? A. Yes, sir. Q. Now, about how fast was that engine moving? A. It wasn't going no faster than a man can walk. Q. Did you see anybody on the back of the engine? A. No, sir; I did not. Q. Now, just describe the position that you saw Mr. Cercido in at that switch as the engine was moving towards him. A. He was bent over. I don't know what he was doing. He had his head down like that, facing the engine (indicating). Q. Was he walking or standing still? A. He was stopped when I seen him. Q. Just tell what he was doing when you first saw the engine at Eleventh street. A. He was bent over there like he was doing something. I was kind of excited when I saw the engine pulling up on him. Q. Tell what he was doing with his foot when you saw him. A. He was bent over moving it, and he had his pipe in his mouth. I was looking at him, and it was done so quick I don't know how it was done. Q. Could you tell when the engine started to stop? A. Yes, sir; it started after it hit the man. Q. How far did it go after it hit him? A. About 15' feet. Q. How far could you see the engine from where you were? A. I could see the engine clear up across Eleventh street from where I was.

On cross-examination the witness testified:

That the first thing that attracted his attention was the bell ringing, and that it continued to ring until the engine struck Cercido; that when he first saw the locomotive it was crossing Eleventh street; that when he first saw Cercido he was coming out of a vacant lot that was there, coming around some sheds which were on the rear of the lots which fronted on Lynch. street; that Lynch street runs east and west, and that Cercido came out through the vacant lot around the corner of the shed on the back of the lot, when witness saw him for the first time. Q. Where was the engine at that time? A. It was up at Eleventh street. Q. Had it crossed or reached Eleventh street? A. It had just reached Eleventh street, coming down the hill. Q. You say you first saw the man at the corner of this shed? A. Yes, sir. Q. And that shed is on the corner of the alley? A. Yes, sir. Q. On the north side of the alley? A. Yes, sir. Q. And you saw the engine about at Eleventh street? A. Yes, sir. Q. Now, what was this man doing when you saw him come out, and where did he go? A. He went up the alley west. Q. He wasn't on the track? A. No, sir; not then. Q. But he walked up the alley? A. Yes, sir. Q. And the engine was coming down east? A. Yes, sir. Q. Now, when did he step onto the railroad track from off the alley? A. Just as he got at that switch he stepped like he was going to step over. Q. When he stepped on the track, where was the locomotive? A. It was coming around the curve at the end of those sheds. Q. How far was it from him when he stepped onto the track; where was the engine? A. About as far as from here to that door when he stepped on it (indicating a door in the courtroom).

Witness was unable to say how far it was from the witness-stand to the door referred to, and the distance is not shown anywhere in the evidence. By other testimony it appears that the distance from the southwest corner of the sheds at the rear of 1020 Lynch street to the switch where deceased was injured was 57 feet.

The witness further testified:

Q. Why didn't you holler to him and call his attention to the engine when you saw him? A. The engine was so close on him. Q. It was so close on him when he stepped onto the track you didn't have time, or what? A. It kind of

frightened me; it was done so quick; thought the man was going to get off; he was standing there moving his foot. Q. You thought he was going to get off the track? A. Yes, sir. Q. How was this man, was he facing west when he stepped onto the track in front of the engine? A. No, not facing west good, but he was facing going south. Q. He wasn't doing that when you first saw him come out from the shed? A. No, sir. Q. Then he walked directly west, didn't he...