Cowherd of Estate Cowherd v. Missouri Pacific Railroad Co.
| Decision Date | 29 December 1924 |
| Citation | 268 S.W. 107,218 Mo.App. 688 |
| Parties | JENNIE COWHERD, Administratrix of the Estate of GEORGE COWHERD, deceased, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant. * |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. E. E Porterfield, Judge.
AFFIRMED.
Judgment affirmed.
Atwood Wickersham, Hill, Levis & Chilcott for respondent.
Hackney & Welch for appellant.
This is an action under the statute to recover for the death of one George Cowherd, alleged to have been caused by the negligence of the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $ 5000 and defendant has appealed.
The facts show that about 11:00 A. M. of August 4, 1921, George Cowherd and three ladies were riding in a five-passenger Ford automobile westward on Washburn, an east and west street in Higginsville, Missouri. The automobile in passing over one of the tracks of the defendant, intersecting the street at right angles, stalled and was hit by defendant's train. The automobile was demolished and Cowherd and Miss Pearle Jordan who was seated in the front seat to his right, were killed. Washburn Street at the point of the collision was one of the main streets of Higginsville. It was paved and much used. Defendant had two tracks running north and south that crossed Washburn street, the west track was the main line track and the east track was a spur or industrial track, called the house track. The collision occurred on the house track. This track joined the main line some 500 or 600 feet south of the point of collision. Cowherd was driving his car west on Washburn street, approaching the track; when he arrived at a point about sixty feet east of the house track he stopped and Miss Jordan, Mrs. Moran and Mrs. Rowe got into the car and rode with him until the car stopped on the track. Mrs. Morgan and Mrs. Rowe occupied the rear seat.
Appellant's switching crew was backing a drag of nine cars on the main line track north on to the house track. The north car in the drag was an oil tank car, the other eight were box cars. In approaching defendant's tracks from the east the view of the occupants of the automobile was obstructed, as was the view of the men on the drag of cars, by a building called a warehouse, which was located nineteen feet from the south curb of Washburn street and twelve feet east of the east rail of the house track. The dimensions of this building were about forty-five feet north and south and twenty feet east and west. There was another building south of Washburn street which was about seventy or eighty feet east of the warehouse. These two buildings obstructed the view of a westbound traveler on Washburn street and also the view of the men on the cars except when such traveler was between the two buildings or for a space of about seventy or eighty feet.
After the ladies got into the automobile it proceeded to travel in low gear at a little less than six miles per hour until it reached the house track where the motor stalled. Mrs. Morgan testified that when the automobile stopped she saw the train backing towards them, the rear or tank car being about three car lengths, or 120 feet, from the automobile. There were two brakemen riding on the north side of the tank car, one on the east and one on the west side. The train was going about six miles per hour. When the train got within about two car lengths, or eighty feet, of the stalled automobile these two men got off, one on each side, and began making signals to the engineer and fireman. When it became evident to those in the automobile that the train was not going to stop the occupants of the automobile attempted to get out and those in the back seat succeeded. Miss Jordan got as far as the north running board and Cowherd "was getting up from the wheel" but was still in the car when the train struck it. Mrs. Morgan testified the train ran about sixty feet after the collision. Mrs. Rowe attempted to grab Miss. Jordan and pull her out of danger but was unsuccessful in so doing. Mrs. Morgan testified that when the automobile stalled upon the track the two men on the tank car were in plain view, she could see them and they could see her.
Mrs. Rowe testified that the first thing she saw when she came from behind the warehouse building were the two men on the tank car; that one of them kept waving to the engineer but that the train did not slow down and he called upon the occupants of the car to jump, and they obeyed. She further testified the train ran eighty feet, or two car lengths, after it struck the automobile.
Plaintiff's evidence tended to show that the train could have been stopped within fifteen feet after the brakes had been applied. Defendant's engineer testified that he could have stopped within twenty-five or thirty feet after he received a stop signal; that he was seated in his cab on the west side of the engine looking to the north toward the crossing but observed no signal until the brakeman, Maroney, ran westward to a point, which the evidence shows was about fifteen feet west of the house track, and gave an emergency stop signal; that he then stopped the train as soon as possible. Defendant admits that the speed of the train was not decreased until about or immediately after the time of the collision. The evidence shows that the fireman was engaged at his work where he could not see a signal given on his side and the engineer could not see the signal of the brakeman, Anderson, who was on the west side of the tank car, on account of the arc of the curve in the track being toward the west and a telegraph pole situated on the inside of the curve between the engineer and Anderson.
It is admitted that prior to and when the north end of the tank car reached a point 120 feet from the point of collision that the engineer could have seen Anderson but defendant's evidence tended to show that the north end of the tank car was within thirty or forty feet of the automobile when it was first observed by the brakeman and was within fifteen or twenty feet when the automobile stalled on the tracks. Defendant's theory was that the engineer did not see the stop signals given by Anderson on account of the curve and the presence of the telegraph pole; that when brakeman Maroney saw that the train was not going to slow up he jumped off the tank car and ran to a point west and gave an emergency stop signal which was seen by the engineer. This was approximately at the time of the collision, which was, of course, too late to avert the accident.
The case was submitted to the jury by plaintiff on the humanitarian theory. There is no question but that there was ample evidence introduced on the part of plaintiff to make out a case under this theory. But defendant complains of the admission of certain testimony which it urges tends to show that it was negligent prior to the time the peril arose and insists that "the humanitarian theory deals with conditions as they exist upon the advent of peril and not with conditions as they might have been prior thereto." In this connection the record shows that on cross-examination of defendant's witness, Anderson and Maroney, plaintiff, over the objection of defendant, brought out that it was the duty of the brakemen to station themselves upon the train in such a position that signals could at all times be seen by the engineer, and that the brakemen knew that they were going into a position where the engineer could not see the signals given. Plaintiff also attempted to show by the engineer that if the brakemen stood on the box car immediately next to the tank car, the signal could have been seen by the engineer. This witness was asked whether he knew when he was backing up the train that after he arrived at a point where the north car was three car lengths from the crossing he would be unable to see a brakeman on the north end of the tank car. On the same theory it is also assigned as error that the court refused to give defendant's instructions K, L, and M, which sought to withdraw from the jury the question as to whether the brakemen or other of defendant's employees could have been stationed at some other place than where they actually were.
The negligence alleged in the petition was that defendant failed to maintain a flagman, watchman, gates and alarm bells at the crossing for the purpose of warning the public; that defendant and its servants on the...
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......* Court of Appeals of Missouri, Kansas CityDecember 29, 1924 [268 S.W. 103] . ......