Degonia v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 21 December 1909
• Parties: DEGONIA v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

123 S.W. 807

DEGONIA v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

December 21, 1909.

1. MASTER AND SERVANT (§§ 180½, 198) — DEATH OF SERVANT — "FELLOW SERVANTS" — SECTION HAND WITH ENGINEER.

A section hand working on a railroad track is not a fellow servant of the engineer of a passenger train by which he was killed, either under the fellow servant law of 1897 (Laws 1897, p. 96), or independent thereof.

2. MASTER AND SERVANT (§ 264) — DEATH OF SERVANT — ACTION — PETITION — ISSUES.

A petition alleged that plaintiff's husband, a trackman, was killed as a direct result of the wantonness, recklessness, and carelessness of defendant's servants in charge of the train by which he was struck; that they negligently ran the train at a high speed, negligently failed to keep a proper lookout for deceased, negligently failed to slow up or stop on discovering decedent's peril, negligently failed to give any warning of the approach of the train, though they knew that deceased and other employés were required to work on the track near the point where he was killed, or, by ordinary care, could have known, and that, by ordinary care in handling the engine, death would have been averted. Held, that the allegations were sufficiently broad to authorize recovery (1) for ordinary negligence in the absence of decedent's contributory negligence, (2) or, if decedent was negligent, under the humanitarian doctrine.

3. MASTER AND SERVANT (§ 236) — DEATH OF SERVANT — TRACKMAN — CONTRIBUTORY NEGLIGENCE.

Decedent, a railroad section hand, was killed while working on the track by a regular fast passenger train running on schedule time. Decedent had worked in the yards for a long time and knew the time of the train and the direction from which it was coming, but without taking any precaution continued to work on the track with his back toward the train until he was struck. Held, that he was negligent as a matter of law.

4. MASTER AND SERVANT (§ 296) — DEATH OF SERVANT — INSTRUCTIONS.

Where, in an action for killing a section hand, it appeared that he was negligent as a matter of law, an instruction that if his death was directly caused by defendant's agents in charge of the train negligently running the same on him without notice or warning, and such servants knew or could have known that he was on the track in time to have warned him of the approach of the train, and that his death was not due to any negligence on his part, the verdict should be for plaintiff, was erroneous as not based on the humanitarian doctrine, but as authorizing a recovery on the theory of ordinary negligence on which plaintiff could not recover.

5. APPEAL AND ERROR (§ 1068) — REVIEW — INSTRUCTIONS — THEORY OF CAUSE.

Where a cause was submitted to a jury by a principal instruction authorizing a recovery on an erroneous theory of the law, plaintiff on securing a verdict could not have it sustained on appeal and have the error declared harmless, because there was a theory which, if submitted, would have sustained a similar verdict.

6. APPEAL AND ERROR (§ 1064) — HARMLESS ERROR — INSTRUCTIONS.

The rule that a reversal will not be had because of the giving of erroneous instructions, which were harmless, applies only to errors in instructions on collateral issues, and not to a principal instruction which outlines the principle of law on which a recovery is sought.

7. TRIAL (§§ 251, 252) — INSTRUCTIONS — APPLICABILITY TO PLEADINGS AND EVIDENCE.

An instruction must be within the purview both of the pleadings and the evidence.

8. MASTER AND SERVANT (§ 278) — INJURY TO SERVANT ON TRACK — RIGHT OF WAY — PUBLIC USE — EVIDENCE.

Evidence held insufficient to justify a finding of public user of a part of a railroad right of way near the point where decedent was killed.

9. TRIAL (§ 250) — ACTION FOR INJURY — INSTRUCTIONS — APPLICABILITY TO PLEADING — EVIDENCE.

Where user by the public of a part of a railroad's right of way near where decedent was killed was neither pleaded nor proved, an instruction that if at or near such point persons were liable to be in or on defendant's track or roadbed to the knowledge of defendant's servants handling the train that killed deceased, etc., and such servants had an unobstructed view of the point in approaching the same from the north, it was their duty to use reasonable care in looking for persons and other objects that might be on the track and to warn them of the approach of the train, was erroneous.

10. MASTER AND SERVANT (§ 137) — DEATH OF SERVANT — RAILROADS — SECTION HAND — RIGHT TO CLEAR TRACK.

Because section hands may be scattered along the tracks of a railroad from one station to another does not deprive the operating servants of the right to rely on a clear track, such trackmen being bound to look out for their own protection.

11. MASTER AND SERVANT (§ 248) — DEATH OF SERVANT — RAILROAD TRACKMEN.

Where a road section hand was killed by a fast passenger train approaching a station as he was working on the track at a point where plaintiff neither pleaded nor proved a public user of the tracks, no recovery could be had in view of decedent's contributory negligence, unless the servants in control of the engine actually saw deceased in a position of peril of which he was oblivious in time to have averted the injury by the exercise of ordinary care.

12. MASTER AND SERVANT (§ 248) — DEATH OF SERVANT — TRACKMEN — PRESUMPTIONS.

A railroad engineer approaching a trackman working on the track may rely on the fact that sectionmen often remain on the track until the train is dangerously close, and then by quick step put themselves in the clear, and that they know the time of trains and protect themselves.

13. MASTER AND SERVANT (§ 236) — DEATH OF SERVANT — RAILROAD TRACKMEN — CROSSING SIGNALS.

A section hand killed on a track by a fast passenger train approaching a station and crossing was not entitled to rely on the giving of station or crossing signals under Rev. St. 1899, § 1102 (Ann. St. 1906, p. 938), requiring railroads to give certain signals at crossings, and making the railroad company liable for damages which any person might sustain "at such crossing" when the bell is not rung or the whistle sounded as required.

14. MASTER AND SERVANT (§ 137) — DEATH OF SERVANT — ROAD TRACKMEN — WATCH REQUIRED.

The operating servants of a railroad train were not compelled to be on a constant watch for persons on the track at a point where the public had no right to be, and where the operatives were entitled to expect a clear track.

15. MASTER AND SERVANT (§ 248) — DEATH OF SERVANT — HUMANITARIAN DOCTRINE.

Deceased, a railroad trackman, with knowledge that a fast passenger train was about due very shortly before he was struck and killed left a place of safety and assumed a place of danger on the track with his back toward the train. There was no evidence that the engineer saw him, but there was evidence that he did not see him. Held, that plaintiff could not recover for decedent's death under the humanitarian doctrine which does not apply to employés working on the road with the same strictness as it applies to passengers or strangers.

16. MASTER AND SERVANT (§ 236) — DEATH OF SERVANT — RAILROADS — PERSONS ON TRACK.

It is the duty of a railroad trackman not to place himself in such a position that he cannot see an approaching train, nor to permit himself to be so engrossed in his work as will prevent him from protecting himself, and if he does so, he is guilty of such negligence as will preclude a recovery for his death, though defendant's servants failed to warn him.

Valliant and Lamb, JJ., dissenting. Gantt, J., dissenting in part.

In Banc. Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by Ida Degonia against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Martin L. Clardy and Jas. F. Green, for appellant. Jerry B. Burks and B. H. Boyer, for respondent.

GRAVES, J.

Plaintiff, Ida Degonia, sues under section 2864, Rev. St. 1899 (page 1637, Ann. St. 1906), for the alleged negligent killing of her husband by one of defendant's passenger trains coming from the north and approaching the depot at Mineral Point, Mo. The negligence charged in the petition is as follows: "Plaintiff further states that the injuries to and subsequent death of her said husband as aforesaid was caused by and was the direct result of the wantonness, recklessness, and carelessness of defendant's agents and servants in charge of the train aforesaid in this: they negligently ran the said train at a high rate of speed; negligently failed to keep a proper watch or lookout for deceased and other persons or objects in and upon or about the track of defendant at the point where deceased was killed and at the places along such track in the near vicinity thereof; negligently failed to slow up or to stop said locomotive and cars upon approaching the deceased and upon the discovery of his peril; negligently failed to give any alarm, sound the whistle, or ring the bell of the said locomotive aforesaid, and negligently failed to give to deceased and others there present any sort of warning or notice of the approach of said train. And plaintiff avers and states the facts to be that defendant's agents and servants in charge of said train well knew at the time that many persons frequented its track in the vicinity of the station aforesaid, and at other points between the station and the point where her husband was killed, and well knew that deceased and others of the defendant's employés were required to work in and upon the track of defendant at or near the point where he was killed, and well knew that it was highly dangerous and unsafe to lives of persons to run its cars and to manage its train as hereinbefore set forth, or by the exercise of reasonable care could have known all said facts. And so plaintiff says that had defendant, its agents...