Crecelius v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 19 June 1920
• Docket Number: No. 21373.,21373.
• Citation: 284 Mo. 26,223 S.W. 413
• Parties: CRECELIUS v. CHICAGO, M. & St. P. RY. CO.
• Court: Missouri Supreme Court

223 S.W. 413

284 Mo. 26

CRECELIUS v. CHICAGO, M. & St. P. RY. CO.

No. 21373.

Supreme Court of Missouri, in Banc.

June 19, 1920.

Rehearing Denied July 12, 1920.

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

Suit by Maude Crecelius, administratrix the estate of Walter Crecelius, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

This is a suit in damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), brought by Maude Crecelius, as administratrix of the estate of Walter Crecelius, deceased, against the defendant, for the alleged negligent killing of the decedent, who was the husband of the plaintiff. She obtained a judgment in the sum of $25,000. From this judgment the defendant has duly appealed. This is the second appeal in this case. After a reversal in this court (Crecelius v. Railway Co., 274 Mo. 671, 205 S. W. 181), the case was taken on change of venue to Daviess county, and plaintiff filed an amended petition. No questions are made as to the pleadings, except as hereinafter noted, and their contents need not be stated in detail.

The evidence in behalf of the plaintiff tended to show that the decedent was about 35 years of age, in good health, was employed by the month at a salary of about $50 per month; that the plaintiff was his wife; that he left one child surviving him; that at the time of his death he was quite, hard of hearing; that the defendant company was engaged in interstate commerce, and the deceased was, and for some time had been, in its employ as a timekeeper at Morley, Iowa. He was attached to a group of workmen which on the day of his death had been engaged in building a passing track (which was intended for temporary use only) in the vicinity of Morley, Iowa, but it appears that the embankment upon which the passing track was built was, to some extent at least, intended to be used and was thereafter used for permanent purposes; that is to say, the scheme of improvement then being executed by the defendant contemplated a correction of the grade of the main track and the laying down of an additional track at that point, thus making a double track for permanent use. In so doing the embankment necessary in laying down the temporary track was apparently consolidated with the main track, and was left in that condition when the second line of the main track was laid down. It was the duty of deceased to attend the working force so engaged, and to check up the men at work at least twice a day. On the day that the decedent met his death, some of these workmen had been engaged in working on the temporary track, and some of them had been working on the main line, removing and replacing ties and rails. The men returned from work, as a rule, on a train provided for that purpose, at about 6 o'clock p. m. of each day. After their return to Morley, they occupied the bunk cars which were located on the south side of the double track at Morley. It then became the duty of the decedent to make out his daily reports. There were two of these reports. One, in a much-condensed form was sent by telegraph, and the other, in the form of a letter, was mailed on a train which usually left Morley at about 8:30 p. m. The decedent occupied one of the bunk cars in conjunction with a number of other men. On the evening of his death he had made out his telegraphic report and stopped with it at a car occupied by a witness named Kroumian, an Armenian who served in the double capacity of interpreter and a sort of assistant timekeeper. Decedent told Kroumian that all of the men had been at work that day, and that he (decedent) was going to send his telegraphic report. A number of Armenians and other foreigners were employed in this work, and Kroumian's duty in part was to act as interpreter in transmitting orders from the foreman to the Armenians. The evidence of the plaintiff tends to show that, after the conversation with Kroumian above mentioned, the decedent left the bunk car in which the conversation occurred and went down to the south side of the passing track. He walked a short distance, some 30 or 40 feet, west along the end of the ties on the, south side of the passing track, until he reached the point at which he desired to cross the two tracks, which were apparently some 9 or 10 feet apart at that point. He then stepped in between the rails of the passing track, and, looking to the east, observed a way freight train approaching from that direction. This train was so close to the decedent that he paused at that place to permit it to pass. As this train approached, the whistle was sounded, and, when it had reached a point on the main track some 18 or 20 feet from where the decedent was standing between the rails of the passing track, the decedent was struck by a gondola car which was being pushed by a work engine approaching him from the west. The freight train on the main track was still moving westward. Decedent was knocked down between the rails and his neck and back were broken. The body was found near or underneath the pilot of the engine.

The evidence in behalf of the plaintiff tended to show that the decedent had been standing between the rails with his face turned to the northeast, facing the train, which was approaching from the east, for about 15 to 25 seconds, and that during that time the work engine pushing the gondola car approached from the west, with the result stated. Immediately before the decedent was struck and killed, some of the men who were in the bunk cars saw his danger and shouted a warning to the engineer upon the yard engine. This warning seems not to have been heard, or, if heard, was not heard in time. The engineer, however, discovered the decedent's perilous position before he was actually struck, and immediately endeavored to stop his engine and car. This attempt was made so forcibly and suddenly that the car was partially derailed and ran for a short distance upon the ties and over the body of the decedent, but without coming in contact with it further than as above stated. There is evidence in behalf of the plaintiff tending to show that there was no brakeman upon the front end of the car which struck the decedent, as the rules required, nor was there any light displayed there, nor was the headlight lighted; that the engine and car in question were running at a speed of 12 to 20 miles per hour; that such a rate of speed, under the circumstances, was excessive and dangerous; and that decedent could have been seen by one riding upon the front end of the gondola car in time for the car to have been stopped without injuring him. It further appears, and seems to be admitted, that there were something more than 100 men occupying the bunk cars on the south side of the tracks mentioned ; that the town of Morley lay to the north of these two tracks; that it was necessary for the men occupying the bunk cars to cross the tracks in order to get to the depot, the telegraph office, and the stores at which they traded in the town of Morley, and also in order to procure the water and coal which they used in the cars in which they lived. The custom of these men frequently to be upon and about these tracks, and to be crossing them for the purposes above mentioned and for other purposes, was well known to the defendant company. At the time the decedent was struck and killed, it was about dusk, and snow was beginning to fall. The evidence for the defendant directly contradicted that offered in behalf of the plaintiff in many material matters, but the verdict is conclusive upon us on those matters of fact, and hence no useful purpose would be served in pointing out the conflicts in detail.

Upon the conclusion of the evidence for the plaintiff, the defendant asked for a peremptory instruction, which was refused, and a like request made at the conclusion of all of the evidence met with a like fate. Exceptions were duly saved in both instances. At the request of the plaintiff the court gave to the jury 14 instructions, and at the request of the defendant gave to the jury 8 instructions. Defendant also requested instructions marked A to N, inclusive, which were refused. Exceptions were duly saved as to the instructions given in behalf of the plaintiff, as well as to the refusal of those requested by defendant and refused by the court.

So far as it may become necessary to do so, the instructions and additional facts will be set forth in the opinion. Twenty-two grounds are alleged in the motion for new trial. Reference will be made in the opinion to such of them as it may be necessary to discuss Fred S. Hudson, of Kansas City, for appellant.

Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondent.

WILLIAMSON, J. (after stating the facts as above).

I. Appellant assigns as error the action of the trial court in overruling appellant's motion to strike out certain portions of the amended petition upon which this case was tried. The motion was based upon the ground that the portions mentioned were a departure from the cause of action theretofore stated. No time need be spent on this question, for the reason that appellant, by filing an answer and proceeding to trial upon the merits, waived the objection, even if the amendment did constitute a departure. Schroeder v. Edwards, 267 Mo. 459, loc. cit. 482, 184 S. W. 108; Castleman v. Castleman, 184 Mo. 432, loc. cit. 440, 83 S. W. 757; Scovill v. Glasner, 79 Mo. 449, loc. cit. 454.

If appellant desired to preserve this point, it should have stood upon its motion. Not having done so, it cannot now complain.

II. Appellant asserts that the court erred in not taking the case from the jury upon appellant's demurrer to the evidence. This contention is based, in part at least, upon the claim that the evidence conclusively shows that the deceased was guilty of contributory negligence. Without now...