Dyke v. Missouri Pacific Railway Company
| Decision Date | 20 July 1910 |
| Citation | 130 S.W. 1,230 Mo. 259 |
| Parties | MARTHA VAN DYKE v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.
Reversed.
R. T Railey, Martin L. Clardy, Woodson & Woodson and Henry G Herbel for appellant.
(1) Defendant's demurrer to the evidence should have been sustained, and the court erred in refusing same: First because there was no evidence tending to show defendant was guilty of negligence which caused Van Dyke's death; second, because all the evidence shows deceased was guilty of negligence which caused his death. Tanner v. Railroad, 161 Mo. 510; Reno v. Railroad, 180 Mo. 469. (2) If deceased got upon and walked down the track under the conditions stated, he was guilty of negligence which caused his death and would have prevented a recovery by plaintiff. Evans v. Railroad, 178 Mo. 508. Under such conditions it was not the duty of the engineer to be on the lookout for the safety of the section hands; all the law requires of the engineer is that he must not knowingly injure the trackmen. Evans v. Railroad, 178 Mo. 517; Moore v. Railroad, 176 Mo. 544; Vogg v. Railroad, 138 Mo. 172. Such employees must look after their own safety. Evans v. Railroad, 178 Mo. 517; Holwerson v. Railroad, 157 Mo. 233. The engineer had the right to presume the deceased would keep out of danger. Evans v. Railroad, 178 Mo. 517; Boyd v. Railroad, 105 Mo. 381; Sweeny v. Railroad, 150 Mo. 396; Moore v. Railroad, 176 Mo. 546; Ries v. Railroad, 179 Mo. 1. It is not even the duty of the section foreman or any one else to look after the safety of the section men; they must be on the alert and keep out of the way of the trains. Evans v. Railroad, 178 Mo. 514; Holwerson v. Railroad, 157 Mo. 240.
W. K. Amick for respondent.
The demurrer was properly overruled. There was ample evidence to go to the jury on the theory that defendant's servants saw, or ought to have seen, the deceased on the track and in danger, and thereafter failed to give him warning of the train's approach in time to get off the track, and failed to promptly make reasonable efforts to stop the train and prevent injury. This is the humanitarian doctrine and is well established. Moore v. Railroad, 194 Mo. 12; Rapp v. Railroad, 190 Mo. 161. There was no proof that deceased was negligent in going upon the tracks. The presumption is that he did look for the approaching train and exercised due care for his own safety. Eckhard v. Railroad, 190 Mo. 613; Riska v. Railroad, 180 Mo. 168. The deceased also had the right to presume that defendant's train would not be run at a greater speed than that allowed by ordinance. He also had the right to presume that the bell would be rung as required by ordinance. Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 199. The presumption is that the deceased did look for the approaching train before going upon the track. And the fair and reasonable inference under the evidence is that the train was not yet in sight when he went upon the track. In fact this may be presumed, for it is presumed that he exercised due care.
Woodson, J., not sitting.
OPINIONIn Banc.
This is an action by plaintiff under section 2864, Revised Statutes 1899, to recover the penalty in said section prescribed for the alleged negligent killing of her husband by one of defendant's trains.
Plaintiff had a verdict and judgment below for five thousand dollars, and defendant appealed to this court. Defendant urges that the facts disclosed failed to show plaintiff's right to recover under the law, and that its demurrer to the evidence should have been sustained. This contention requires a close and detailed statement of the facts.
Defendant ran its trains in and out of St. Joseph, Missouri, on the tracks of the C. B. & Q., or Burlington Railway Company. The place of the accident is in South St. Joseph, in the railroad yards, at a point twelve to thirteen hundred feet south and west of Illinois avenue in said city. Near the intersection of Illinois avenue (which street runs east and west) and the railroad tracks was a depot, and some of the distances named are calculated from the southern end of this depot. South of Illinois avenue are the railroad yards, a strip three hundred feet in width, fenced upon each side with wire fence, and it was within this enclosure that the deceased met his death. Upon this property appear to have been signs indicating that it was private property and forbidding trespassing. It does appear from the evidence that at one point the wires had been cut and that there was a path across these yards. To the east of the yards were a number of houses, evidently owned by laborers in the employ of the packing houses, which were to the west of the switchyards. The evidence discloses the use of these yards by such employees in going to and from their work, which use seems to have been at the morning, noon and evening hours.
The Burlington Railway Company had two main line tracks in this enclosure. Upon one of these tracks all south-bound trains were run, and upon the other all north-bound trains were run. Van Dyke, the deceased, was in the employ of the Burlington Company, as section man, and for some months had been at work in these yards. Besides the tracks of the Burlington there were two other railroad companies which had main line tracks within this fenced enclosure. All Burlington and Missouri Pacific trains used the Burlington tracks. All told a great many trains passed this point in the course of a day.
Going now to the details of this accident and its surroundings, we note that deceased was killed by a south-bound Missouri Pacific passenger train which left Union Station at 10:25 a. m. on July 7, 1904. The train was on the west main line Burlington track and was running on schedule time that day. It was due at the point of accident at about 10:35, if on time, and it was shown to have been on time. The schedule rate of speed at the point of accident was twenty-one miles per hour. Plaintiff's evidence tended to show a speed that morning of thirty-five to forty miles per hour, while defendant's evidence showed a rate of twenty-five miles per hour.
The depot referred to above is south of Illinois avenue, and the south end of the depot is about one hundred and fifty feet south of the south line of Illinois avenue. From the evidence it appears that a train did not become visible to persons in the neighborhood where deceased was at work until it reached the south end of the depot. At a point between eleven hundred and twelve hundred feet south of Illinois avenue there began a cut-off track which connected the two main line tracks of the Burlington. The path spoken of above crossed near this point. To the west of the west main line track was what was called the "team track," which connected with the west main line track about nine hundred and fifty feet south of Illinois avenue. Upon this track cars were continuously standing. To the west of this track and over near the west wire fence was a switch track, which came to an abrupt ending at a point something over thirteen hundred feet south of Illinois avenue. On the day in question a car had been partially derailed at the end of this track. In other words, the south end of the car and the trucks thereunder had been pushed beyond the end of the rails of this "stub" track. Deceased and others were engaged in getting this car back upon the track. Shortly before the accident deceased went north to the cut-over track above mentioned, to get a crowbar from a handcar which was standing on this cut-over track. In returning with the crowbar deceased walked for a space upon the west main line track with his back to the coming train and was struck and killed. The principal point of dispute is the distance which deceased walked upon this track before being struck. Plaintiff urges that deceased was walking on this track for a space of ninety feet; defendant claims that he was on the track but for a short space.
Before going into the testimony of witnesses in detail other further general facts should be noted. The car upon which deceased and others were working was thirty-four or thirty-six feet long, and the south four-wheel trucks were off the tracks and on the ground. The railroad rails were shown to be thirty-three feet in length. It also appears that after the accident and before the trial this "stub" track was extended about two-thirds of a rail-length, or twenty-two feet, and thus there is occasioned some of the discrepancies between the testimony of the two sides. Plaintiff's measurements of distances were made a few days before trial and after the extension of this track for the distance aforesaid. In making their measurements the witness for the plaintiff, on the Monday before the trial, began at a point where the west rail of the cut-off track was six feet from the east rail of the main line track, and measured to a point seven feet beyond the rails of the "stub" track, and found the distance to be one hundred and ten feet. These are the figures given by witness Patton for the plaintiff and is her only measurement. Another witness says that an extension of two-thirds of a rail's length, or about twenty-two feet, had been added to the track after the accident and before the measurements. The measurements made by defendant's witness were made from a point where the west rail of the cut-off track was nine feet from the east rail of the main line, which would make their starting point somewhat south of the starting point taken by plaintiff's witness Patton. There had been marks placed upon the rails indicating the position of the...
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