Evans v. Wabash Railroad Co.

• Decision Date: 13 July 1909
• Citation: 121 S.W. 36,222 Mo. 435
• Parties: ANNA EVANS v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

121 S.W. 36

222 Mo. 435

ANNA EVANS v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 13, 1909

Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.

Reversed.

Geo. S Grover and James L. Minnis for appellant.

(1) Defendant was not the insurer of the safety of plaintiff's husband on the occasion here described. Turner v. Haar, 114 Mo. 346; 1 Labatt on Master and Servant, p. 306; Flori v. St. Louis, 69 Mo. 341; Fuchs v. St. Louis, 167 Mo. 621; Gulath v. St Louis, 179 Mo. 38; Cox, Admr., v. Railroad, 102 Iowa 711; Stockwell v. Railroad, 106 Iowa 63; Kinzel v. Railroad, 137 F. 489. (2) The storm -- an act of God -- was the proximate cause of the death of Geo. W Evans on December 12, 1903. For this result defendant was not responsible in damages to plaintiff. Authorities under point 1. (3) There was a complete failure of proof. For that reason defendant was entitled to a judgment in its favor. R. S. 1899, sec. 798; Bell v. Railroad, 72 Mo. 61.

Willard P. Cave for respondent.

(1) Defendant is liable for damages to agents or servants caused by the negligence of their fellowservants. R. S. 1899, sec. 2873; Callahan v. Merchants Bridge & Ter. Co., 170 Mo. 473; Cambron v. Railroad, 165 Mo. 543. (2) This head-end collision occurred in the middle of the day on a straight track; the fact that it was snowing did not make this collision the act of God. Pruitt v. Railroad, 62 Mo. 527; Read v. Railroad, 60 Mo. 199; Vail v. Railroad, 63 Mo. 230; Haney v. City of Kansas, 94 Mo. 334; Hutchinson on Carriers, sec. 184; Wolf v. American Express Co., 43 Mo. 421; 1 Am. and Eng. Ency. Law (2 Ed.), 585, 587. (3) The proof was complete res ipsa loquitur. There was not a scintilla of evidence of contributory negligence in the case. Shuler v. Railroad, 87 Mo.App. 618.

OPINION

FOX, J.

This cause reached this court by appeal from a judgment in favor of Anna Evans, respondent, and against the Wabash Railway Company, appellant, rendered in the circuit court of Chariton county.

Respondent is the widow of George W. Evans, who was killed in a collision between a passenger train and a freight train, near the city of Brunswick, Chariton county, on December 12, 1903. The deceased was fireman on an engine, pulling passenger train No. 12 on appellant's railroad, which passenger train ran into freight train No. 91 about two miles east of Brunswick while said freight train was standing still, and which collision resulted in the death of said Evans.

The material portions of respondent's petition, or those parts which formulate the charges of negligence against appellant, are as follows:

"That on said December 12, 1903, between the hours of 11 and 12 o'clock in the forenoon of that day, the defendant, by its agents and servants, while running and operating its said locomotive engine and train of passenger cars at a point on defendant's said railroad about two miles east of the city of Brunswick, in the county of Chariton, in the State of Missouri, so negligently and carelessly ran and operated same that said locomotive engine and train of passenger cars ran into and collided with another locomotive engine and train of freight cars, being then and there operated by defendant; which said locomotive engine and train of freight cars were bound west and were being run to Kansas City, Missouri, and were then and there on the same track with said passenger train which was running east; that said freight train and engine attached to same were at the time of said collision and for a period of twenty minutes prior thereto, standing still on defendant's said track at the point aforesaid, and the agents and servants of defendant then and there in charge of said locomotive engine and freight train attached thereto saw said passenger train approaching it and failed and neglected to sound the steam whistle on said freight engine and failed and neglected to give proper signals to said east-bound passenger train then approaching on said track, same being the main track; that said collision occurred on a straight track where the engineer on said passenger engine could have seen said freight engine and train for more than a mile by keeping a proper lookout ahead; that the engineer of said passenger engine and train failed and neglected to keep a lookout ahead and failed and neglected to see said freight engine and train standing on said track as aforesaid, when same could have been seen by him as aforesaid, and failed and neglected to stop said engine and passenger train, and so negligently and carelessly ran said engine that same collided with said freight engine and train of cars, and by reason thereof said passenger engine was wrecked and plaintiff's said husband, George W. Evans, was, while then and there in the service and employ of defendant, as aforesaid, and while engaged in the operation of defendant's said railroad, struck by the wreckage and by the coal on the tender of said passenger engine, being thrown with great force against him, the said George W. Evans, by reason of said collision, and he, the said George W. Evans, the husband of plaintiff, as aforesaid, was then and there, without fault or negligence on his part, instantly killed.

"That the death of plaintiff's said husband, George W. Evans, was caused by the carelessness and negligence of defendant's engineer running said passenger engine, in failing and neglecting to keep a proper lookout in front of his said engine, and in failing and neglecting to observe the said freight engine and train standing on said track, and by the carelessness and negligence of the engineer and train crew of said freight train aforesaid, in failing and neglecting to give the proper signals to the engineer of said passenger engine in time to avoid said collision, thereby causing said collision and killing plaintiff's said husband, as aforesaid."

The answer denies generally the allegations of the petition, pleads contributory negligence on the part of deceased, and then further answering "defendant says that the death of plaintiff's husband, at the time and place stated in her petition, was solely the result of a sudden, unusual, unprecedented, unforeseen and extraordinary storm then and there prevailing on the line of the railroad of defendant, which rendered it impossible to prevent said injury and death."

The record does not disclose the filing of a replication.

On December 12, 1903, freight train No. 91 going west on appellant's railroad, had, by proper order, until 11 o'clock a. m., to run to Brunswick and take siding for passenger train No. 12. By the order referred to passenger train No. 12, going east, could not leave Brunswick before 11 o'clock, but after that time, even though train No. 91 had not reached Brunswick, the passenger train held the right of way, and might proceed, regardless of No. 91. Train No. 91 had passed Dalton, a station about five miles east of Brunswick, and was proceeding to make said meeting point and clear for the passenger train in due time, when it was stopped about two miles east of Brunswick by eight or nine telegraph poles which had blown across the track by a very severe wind, sleet and snow storm which was then raging. Train 91 was a heavy freight and running slow. The engineer of the engine pulling this train discovered the poles and as he was running only eight or ten miles an hour stopped after running into at least one of them. This was about 10:45 o'clock a. m. Immediately after the train was stopped a flagman was sent to the rear to stop freight train No. 67, which he succeeded in doing; and as soon as the conductor of train 91 could get to the engine he dispatched brakeman Byers with a red flag and probably a torpedo, to Brunswick, with orders to flag and hold anything which might be coming. Byers left some twenty or twenty-five minutes before the collision occurred. The conductor, brakeman, engineer and fireman of train 91, a part of the crew of train 67, a track-walker and some farmers living near, had reached the point where the poles were down across the track and some were engaged in getting the poles off, when the form of passenger train No. 12 was discovered coming about a quarter of a mile away. This was about 11:05 a. m. At first it was thought to be an engine coming to help and as soon as it was discovered to be the passenger train, the conductor, brakeman and engineer of train 91 hallowed and gave the stop signals. At this time the wind was blowing severely and it was snowing very hard. The passenger train was running forty or forty-five miles an hour. No one on the engine appeared to notice the efforts made to signal them and the train never checked its speed until it struck train 91. The passenger train was going east, and the storm, an unprecedented wind and snow storm, was raging from the northwest. The smoke from the engine and steam caused by the falling snow on the boiler was blowing against the engineer's side, who sat on the right of the engine. Engineer Mathias, who was in charge of the passenger engine, says that the storm was not so severe when he left Brunswick, but that as he proceeded east it kept getting worse; that he could not see anything ahead of him, because of the sleet, wind, steam and snow; that he neither saw nor heard any signals and knew nothing of the collision until it occurred. His engine knocked several telegraph poles off the track, but owing to the wind and noise of the storm and rapidity with which he was running, he did not know of these occurrences. The brakeman, Byers, did not testify, nor is there any evidence showing what, if anything, he did in the way of flagging No. 12. No showing was made as to why he was not produced as a witness, more than to show that he left the...