Conley v. Missouri Pac. R. Co.

• Decision Date: 05 June 1923
• Docket Number: No. 17845.,17845.
• Parties: CONLEY v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

253 S.W. 424

CONLEY v. MISSOURI PAC. R. CO.

No. 17845.

St. Louis Court of Appeals. Missouri.

June 5, 1923.

Rehearing Denied June 22, 1923.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by M. E. Conley, administrator of William Conley, deceased, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jesse H. Schaper, of Washington, Mo., and Montgomery & Rucker, of Sedalia, for appellant.

James Booth, of Pacific, and Shepard Barclay, of St. Louis, for respondent.

NIPPER, C.

Plaintiff, as administrator of the estate of William Conley, deceased, brought this action against defendant to recover damages on account of the deceased, who was plaintiff's brother, being killed by one of defendant's locomotives on November 4, 1920, at 6:15 p. m., at which time it was dark. The place where deceased met his death was on the tracks of the defendant railroad, and in front of and directly north of the plant of the Scullin Steel Company, in the city of St. Louis. Deceased was leaving the plant of the steel company after completing his day's work, and was attempting to cross the tracks of the defendant railroad at the regular crossing which leads from the said plant directly north across the two tracks of the railroad to Manchester avenue., The deceased had been working at the steel company plant for about two or three weeks prior to the time he was killed. He was 23 years old, and unmarried.

The petition counts on the humanitarian doctrine, and excessive speed. It is alleged therein that defendant's agents, officers, and servants failed to slacken the speed of the train, or sound any timely warning, in time to have saved deceased's life after he came into a position of danger. The answer was a general denial coupled with a plea of contributory negligence.

The road leading from the steel plant across the tracks of the defendant has been maintained at this point for the use of the several hundred employees of the steel company, who use it daily in going to and from their employment, and for wagons, automobiles, and other vehicles which may have and do have occasion to use the same; and such road has been maintained and used for such purposes for something like 20 years. The plant of the steel company is about 40 or 50 feet south of the first track of the defendant railroad. From the door where plaintiff left the steel plant after his day's work and started to his home or boarding place, it is 81 feet to the first track, and deceased, in reaching this crossing, walked in a northeasterly direction facing the direction from which the train came which killed him. It was a west-bound train traveling on the north tracks. From the first rail of the eastbound track, to the last rail of the northbound track, it is 17% feet. The distance between the two tracks was about 8 feet.

One witness stated that deceased was struck just as he was crossing the north rail of the west-bound track, and two witnesses stated that it appeared that he was struck while near the south rail of said track.

There was nothing to obstruct the view of deceased at any time after he left the building and walked in a northeasterly direction about 97 or 98 feet to the place where he was struck. There was a straight track for a distance of a quarter of a mile as stated by one witness, to 1,800 feet as stated by another. The train which struck deceased was traveling at 25 or 30 miles per hour. There were regular crossing planks about 15 feet long at this crossing. These boards were maintained there by the defendant. A short distance north of the railroad tracks is the Manchester avenue street car line, and there are kept and maintained there certain street lights which made the place well lighted at the time. The street car tracks were slightly higher than the tracks of the defendant company. There was no whistle sounded, nor bell rung, nor did the locomotive slacken its speed or stop when it hit deceased. Deceased was walking at an ordinary pace of about 3 miles per hour, and was looking in the direction which he was walking. At the same time there was a street car on Manchester avenue, traveling in the same direction as the train, and about even with it. There was a headlight burning on the street car as well as on the locomotive.

From the testimony of witnesses who viewed the accident, it appears that deceased gave no indication at any time that he saw the train until he was struck. His sight and hearing were good. One witness testified that he was about 30 feet from deceased at the time he was struck, and observed him as he was going toward the track. When deceased had reached the south track, witness called to him to "look out" as the train was approaching. Another witness who was standing near testified that he saw the train close to deceased, and called to him: "Look out for the train !" We here quote from the testimony of this witness on direct examination:

"Q. Do you know whether he heard you or not? A. Yes, sir; he looked at me, and I turned my head, and then I looked again and the train struck him.

"Q. When you spoke to him, how far was he from the railroad track? A. Oh, he was pretty close, about going on the south track; I was standing at the south track.

"Q. Whereabouts was he when the train struck him? A. Well, I judge about the north track.

"Q. And about which rail of the north track? A. I judge about the north track, right at the north track.

"Q. Do you mean the north rail? A. Yes, sir; the north rail of the north track; there is two tracks there.

"Q. That train approaching that evening, did it sound any alarm at all? A. it didn't hear any.

"Q. Well, did you hear th rumble of the train before it got there? A. Yes, sir, I saw it coming.

"Q. Now, what was there to prevent you hearing the bell or whistle? A. There wasn't anything.

"Q. And you didn't hear any? A. No, sir. "Q. Were you listening? A. Just standing there watching.

"Q. When he got to the south rail of that track, about how far away was that train from him? A. Well, I couldn't exactly say; it was pretty close. I told him to look out.

"Q. He walked about the same rate of speed all the time, did he? A. Well, I would judge so."

Plaintiff introduced in evidence, over the objections and exceptions of defendant, sections 1046 and 1047 of Wagner's Ordinances of the City of St. Louis, with respect to the rate of speed that an engine is to be operated within the city limits, and with respect to certain signals to be given.

At the close of the plaintiff's case, the defendant requested an instruction in the nature of a demurrer, which the court refused to give.

Defendant offered no evidence.

The court, at the request of plaintiff, gave the following instruction:

"The court instructs the jury that, if you find the issues for the plaintiff, you will assess his damages at not less than $2,000 or more than $10.000.

"In determining the amount you will award the plaintiff, you may take into consideration the facts constituting the negligence, if any, on part of the defendant causing the death of the said William Conley, including the aggravating circumstances, if any, attending such negligence, if any, as is shown by the evidence."

This was the only instruction requested by plaintiff.

Plaintiff recovered judgment for $4,000, and defendant appeals.

The first question presented for our determination is whether or not the plaintiff was entitled to recover under the last chance doctrine as pleaded in the petition. The facts as made by this record present a question which is not entirely free from difficulty in its determination.

To briefly restate the facts: Deceased left the building where he had been employed, and started in a northeasterly direction to the railroad tracks, the first of which was 81 feet away. When he reached the same, he turned north to cross the tracks, reaching the south track first, and then traveled on to the north track, where he was struck by the west-bound train as he was passing over the last rail of the north track.

To entitle plaintiff to recover under this assignment of negligence, it must be made to appear from the facts in evidence that defendant's...