Darby v. Henwood

• Decision Date: 11 December 1940
• Docket Number: 36674
• Parties: Ruby Darby, by next friend, v. Berryman Henwood, Trustee for the St. Louis-Southwestern Railway Company, and L. W. Baldwin and Guy A. Thompson, Trustees for the Missouri Pacific Railway Company, Appellants
• Court: Missouri Supreme Court

145 S.W.2d 376

346 Mo. 1204

Ruby Darby, by next friend, v. Berryman Henwood, Trustee for the St. Louis-Southwestern Railway Company, and L. W. Baldwin and Guy A. Thompson, Trustees for the Missouri Pacific Railway Company, Appellants

No. 36674

Supreme Court of Missouri

December 11, 1940

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Reversed and remanded (with directions).

Oliver & Oliver and Spradling & Strom for appellants.

(1) An order sustaining a motion to set aside a nonsuit and reinstating the cause on the docket for trial is an order from which an appeal will lie. Vordermark v. Hill-Behan Lbr. Co., 12 S.W.2d 498. (2) In order for the plaintiff to recover she must prove that the defendants were negligent and that such negligence was the proximate cause of the injury. Hamilton v. Railroad Co., 250 Mo. 721. (a) The fact that the body of a man is found by a railroad track may raise the inference that he was killed by the train, but it is not inferable that he was killed by the negligence of the railroad company. An inference cannot be based on an inference. Hamilton v. Railroad Co., 250 Mo. 723; Davis v. Railroad Co., 155 Mo.App. 312. (b) There is no evidence of any negligent act or acts on the part of the defendants. (3) There was no public user of the track at the place in question such as to require the defendants to keep a lookout for persons on the track. Hamilton v. Railroad Co., 250 Mo. 714; Frye v. Railroad Co., 200 Mo 377; English v. Railroad Co., 108 S.W.2d 57. (a) User by the public as such by both day and night must be shown. User by day does not require a lookout by night. Frye v. Railroad Co., 200 Mo. 377; Hufft v. Railroad Co., 222 Mo. 302. (b) There is no evidence of public user as such during either the day or night. (c) The defendants, being thus entitled to presume the track was clear, are not liable unless the deceased was actually seen on the track by the trainmen, and, after seeing the deceased, could have avoided striking him, assuming that he was struck by the train. Frye v. Railroad Co., 200 Mo. 377; Hufft v. Railroad Co., 222 Mo. 301; Hamilton v. Railroad Co., 250 Mo. 714; English v. Railroad Co., 108 S.W.2d 51.

Rush H. Limbaugh for respondent.

(1) In considering propriety of action of trial court in sustaining motion to set aside involuntary nonsuit, respondent is entitled to every favorable inference of fact which the evidence reasonably warrants, and countervailing inferences are to be rejected. Evans v. Atchison, T. & S. F. Ry. Co., 131 S.W.2d 608; Smith v. Wallace, 119 S.W.2d 815; Graves v. Mo. Pac. Ry. Co., 342 Mo. 542, 118 S.W.2d 789; Rowe v. M.-K.-T. Ry. Co., 100 S.W.2d 484; Kelso v. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 532; Wise v. C., R. I. & P. Ry. Co., 335 Mo. 1168, 76 S.W.2d 120; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 511; Stewart v. Laclede Gas Light Co., 241 S.W. 911; Beusching v. St. Louis Gaslight Co., 73 Mo. 231. (2) In an action for negligent death, there is a presumption against suicide. State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 103; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 511; Unrein v. Oklahoma Hide Co., 295 Mo. 353, 244 S.W. 927; Stewart v. Laclede Gas Light Co., 241 S.W. 912. (3) Where no one sees an accident in which a person is killed and no witness can relate how it occurred, it is presumed that the deceased was in the exercise of due care at the time. Fox v. Mo. Pac. Ry. Co., 335 Mo. 984, 74 S.W.2d 611; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 101; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 511; Unrein v. Oklahoma Hide Co., 295 Mo. 353, 244 S.W. 927; Privette v. West Plains, 93 S.W.2d 251; Hasenjaeger v. M.-K.-T. Ry. Co., 227 Mo.App. 413, 53 S.W.2d 1083; Pulsifer v. Albany, 226 Mo.App. 529, 47 S.W.2d 233; Jamison v. Kansas City, 223 Mo.App. 684, 17 S.W.2d 621; Whiteaker v. Mo. Pac. Ry. Co., 15 S.W. (2) 952. (4) The record reveals facts and circumstances showing that the deceased was on or by the railroad track and was struck by a train. Evans v. A., T. & S. F. Ry. Co., 131 S.W.2d 604; Wise v. C., R. I. & P. Ry. Co., 335 Mo. 1168, 76 S.W.2d 118; Fox v. Mo. Pac. Ry. Co., 335 Mo. 984, 74 S.W.2d 608; Hall v. Mo. Pac. Ry. Co., 218 Mo. 545, 118 S.W. 56; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S.W. 967; Hasenjaeger v. M.-K.-T. Ry. Co., 227 Mo.App. 413, 53 S.W.2d 1083; Whiteaker v. Mo. Pac. Ry. Co., 28 S.W.2d 680; Ducoulombier v. Baldwin, 101 S.W.2d 96. Deceased was struck by a train at a point where defendants were required to exercise ordinary care to avoid injuring people. Evans v. A., T. & S. F. Ry. Co., 131 S.W.2d 604; Fox v. Mo. Pac. Ry. Co., 335 Mo. 984, 74 S.W.2d 608; Hall v. Mo. Pac. Ry. Co., 218 Mo. 545, 118 S.W. 56; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S.W. 967; Hasenjaeger v. M.-K.-T. Ry. Co., 227 Mo.App. 413, 53 S.W.2d 1083; Whiteaker v. Mo. Pac. Ry. Co., 28 S.W.2d 680; Ducoulombier v. Baldwin, 101 S.W.2d 96.

Bradley, C. Hyde, C., concurs; Dalton, C., not sitting.

OPINION

BRADLEY

This is an action to recover $ 10,000 under the compensation section of our death statute, Sec. 3263, R. S. 1929, Mo. Stat. Ann., p. 3371, for the death of plaintiff's husband alleged to have been caused by the negligence of defendants. At the close of plaintiff's case the court gave a peremptory direction to find for defendants, and thereupon she took an involuntary nonsuit with leave to move to set the same aside. Motion to set aside was duly filed and sustained and defendants appealed.

We shall refer to the St. Louis-Southwestern Railway Company as the Cotton Belt, and to the Missouri Pacific Railway Company as the Missouri Pacific. About 3 A. M., on the night of October 31, 1937, plaintiff's husband, Lon Darby, was found, fatally injured, lying near the Cotton Belt track and about 250 or 300 feet south of the station and intersection of the Cotton Belt and the Belmont branch of the Missouri Pacific, at Delta, Missouri. He was unconscious when found, and so remained, and died about 24 hours thereafter. For the purpose of the statement we may say that the Cotton Belt track extends north and south through Delta, and is straight from a point about a mile north of the station down to the point where deceased was found. A southbound Missouri Pacific through freight, without stopping, passed through Delta, on the Cotton Belt track, at 2:22 A. M., on the night of October 31st, [145 S.W.2d 378] and 17 minutes thereafter, a southbound Cotton Belt through freight, without stopping, passed through. There are no eyewitnesses, but the circumstances support the inference that one of these trains struck the deceased.

It is alleged that both the Cotton Belt and the Missouri Pacific use the Cotton Belt track through Delta, and public user by pedestrians of the track where deceased was found was also alleged. There is no allegation and no evidence as to which of the two trains struck deceased. It is alleged that a "freight train being run and operated by defendants, ran southwardly over said railroad track through the town of Delta, crossed the railroad intersection and the intersection of the street or highway immediately south of said railroad intersection, and ran upon and against the said Lon Darby as he was on said railroad right of way, and said freight train then and there struck the said Lon Darby, whose back was turned toward said approaching freight train and who was oblivious to the approach of said freight train."

And it is alleged that "the death of the said Lon Darby was caused by the said freight train, then and there being operated by defendants, . . . striking him . . . while it was being run and operated at a speed of fifty (50) miles an hour, and the death of the said Lon Darby was directly caused and occasioned by the negligence of the defendants . . . as follows:"

(1) Failure to sound the whistle or ring the bell, 80 rods from the public road crossing (south of station) as required by statute and town ordinance; (2) operation of the train over the railroad intersection at a high, dangerous, and excessive speed, without slackening the speed, and without blowing the whistle, ringing the bell or giving any signal of approach; (3) violation of the humanitarian rule.

The separate answers were general denials and pleas of contributory negligence.

James Moore testified that he had lived in Delta 40 years; was Cotton Belt section foreman and had been for 28 years; that he "almost grew up with Delta;" that deceased had worked on the Cotton Belt section at Delta for four years, but not regularly; that he (deceased) worked October 31st, but quit about 4 P. M.; that he did not see him any more until about 2 A. M. next morning; that he (witness) was going to the station to get a check that he expected on a train due at 3:11 A. M., and, that on the way, he saw deceased, and that, from a restaurant, they walked east on the Chaffee public road which crossed the Cotton Belt track about 50 feet south of the station; that when they reached a wagon road, about 10 feet west of the Cotton Belt track, he (witness) turned north to the station and deceased turned south towards his father's house which was about 200 feet south of the Chaffee public road. The record shows that the wagon road, down which deceased turned, extends only to the home of his father.

Moore further testified that deceased was drinking enough to make him stagger; that when deceased left him "he told me he was going to his father's house. . . . I asked him, when he turned off, if he wanted me to go to the house with him . . and he said, 'No, I can make it all right.' . . . Darby said something to me about a train. When we was coming across the Frisco, probably 150 feet (away), the...