Feldewerth v. Wabash Railroad Company
| Decision Date | 03 March 1914 |
| Parties | MARIE FELDEWERTH, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Montgomery Circuit Court.--Hon. James D. Barnett, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
James L. Minnis, N. S. Brown and Smith & Johnson for appellant.
(1) Appellant's demurrer to the evidence, offered at the close of the plaintiff's case, and again at the close of all the evidence, should have been given, and the court erred in submitting the case to the jury, because: (a) The evidence shows that defendant's agents and employees then operating the said freight train were not guilty of negligence as a matter of law. (b) The undisputed evidence shows that the plaintiff, herself, was guilty of negligence in failing to keep a lookout to the west, when she saw and knew that the train was upon the track, and in assuring her brother, who was then driving the horse, that it was safe for him to go upon the railroad track. Lien v. Railroad, 79 Mo.App. 475; Kelsay v. Railroad, 129 Mo. 362; Green v. Railroad, 192 Mo. 131; Sanguinette v Railroad, 196 Mo. 466; Laun v. Railroad, 216 Mo. 563; Waggoner v. Railroad, 152 Mo.App. 173; Dyrcz v. Railroad, 238 Mo. 33; Pope v Railroad, 242 Mo. 232; Burge v. Railroad, 244 Mo. 76; Farris v. Railroad, 167 Mo.App. 392; Burnett v. Railroad, 154 S.W. 1135. (2) The court erred in the giving of plaintiff's instruction No. 1 because the said instruction purports, upon its face, to cover the entire case, and fails to confine the jury to a consideration only of the specific acts of negligence charged in the petition. The said instruction is nothing more than a roving and unrestrained commission to the jury to find for the plaintiff and against the defendant. Davidson v. Transit Co., 211 Mo. 675; Miller v. Railways Co., 155 Mo.App. 528; Reading v. Railroad, 165 Mo.App. 123.
W. R. Dalton and E. Rosenberger & Son for respondent.
This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant's negligence. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff received her injuries while crossing defendant's railroad track in the town of Wentzville, through defendant's local freight train suddenly backing against the buggy in which she was riding. It appears the local freight train had been standing for a couple of hours on the north or "passing track" at Wentzville. The train was headed to the westward, and the caboose stood about four feet west of the west end of the street crossing. Plaintiff was in a buggy in company with her brother, who was driving the horse southward across defendant's track, on the public crossing, when suddenly the freight train standing there was precipitated backwards with great force against the buggy, overturning it and inflicting severe and permanent injuries upon her.
The specifications of negligence relied upon in the petition go to the effect that defendant suddenly, without warning of any kind and without keeping a man or lookout at the rear of the train to give signals concerning its movements, backed the train upon plaintiff while on the public crossing, so as to occasion her injuries. It appears the train in question had been standing on the crossing for probably two hours, waiting for other trains from the west to pass there. The train was a long one and extended from within four feet--that is, where the caboose stood--of the public crossing at which plaintiff was injured, to the westward, across another street as well. The train had been cut in two, or separated, at the crossing of the street farthest west, so as to permit passing through over that thoroughfare, and the locomotive had gone to a water tank several miles away for a supply of water. At about 6:45 in the evening, the locomotive returned and picked up some two or three cars on the south or "house track," then ran to the westward on the main line and backed down to the eastward on the north switch, or "passing track," with a view of coupling those cars to the standing cars of the train next west of the crossing which had theretofore been cut. It was designed, too, to make what is mentioned in the evidence as a "double coupling," that is to say, to couple by the same impact the cars attached to the locomotive to those standing next west of the crossing, which had been cut, and shunt those cars over the crossing so as to couple them on to the main part of the train standing east of the crossing. The couplings were automatic and operated as a result of the impact and the force involved in making them.
The evidence is abundant to the effect that this "double coupling" was made with great force. Indeed, the engineer and brakeman testify that the locomotive was running about four miles per hour at the time. Upon the occurrence of the impact and because of the force employed thereabout, the entire train was shunted backwards--that is, to the east--so as to drive the caboose against the buggy in which plaintiff was riding, passing south on the highway crossing. The buggy was thus overturned, plaintiff thrown upon the railroad track, with her back across the rail, and "scooted" along the same as the caboose proceeded eastward.
It is first argued the court should have directed a verdict for defendant because there is no evidence tending to prove the negligent acts relied upon for a recovery, but we are not so persuaded. It seems the case was carelessly tried on the part of plaintiff and without a well-directed effort to develop the facts duly relevant to the charges of negligence laid in the petition. But be this as it may, there is enough revealed to render the question of defendant's negligence one for the jury. By scrutinizing plaintiff's evidence, it appears she said that, though she looked and listened attentively, she neither saw an engine nor heard any noises whatever therefrom. From this, of course, the jury may infer that no blasts of the whistle were sounded nor bell rung, as is usual, to the end of giving warning that a train is about to be moved. Furthermore, she says that she observed no one stationed about the crossing where the caboose ran upon the buggy. Plaintiff's brother, who was driving the buggy, said, "I looked up the track, and so did sister, and I seen no engine, heard no whistle or no bell; there was no one around nowhere, except maybe a rig way up the street." Of course, this evidence tends to prove that no warning whatever of the movement of the train was communicated and in and of itself constitutes substantial evidence to that effect. Then, too, upon reading the entire record, there seems to be enough in the evidence introduced on the part of defendant to show that no one was stationed about the crossing with a view of giving warning that the train was to be moved. However, the evidence is meager and, as said before, poorly developed on the true issues in the case. But it is substantial in character and sufficient to reveal a negligent breach of duty on the part of defendant with respect to plaintiff who was using the crossing at the highway immediately adjacent to the caboose. [See Compton v. Mo. P. R. Co., 165 Mo.App. 287, 147 S.W. 842; s. c. 147 Mo.App. 414, 126 S.W. 821.]
Plaintiff and her brother, in the buggy, approached the railroad tracks from the north, driving in the public thoroughfare, and came in view of the train, probably fifty or seventy-five feet before they reached the point at which she was injured, for it appears a public street of the town runs east and west along the north side of the railroad tracks. The date was July 13 and the hour about 6:45 or 7:00 in the evening, so the fullness of daylight prevailed. The train, it is said, was a long one, consisting of about twenty-five cars, and the view to the westward in the neighborhood of the engine was wholly unobstructed, save by a small band stand and some two or three trees along the line of the street. It is said that the band stand stood 950 feet west of the crossing at which plaintiff was injured. This band stand was octagonal and about fourteen by fourteen feet in dimensions and from twelve to fourteen feet high. A portion of this structure stood in the public street and a portion on the railroad right of way. The evidence is, that there was a space of eight or probably ten feet between the band stand and the north side of the railroad track on which the train was standing. Plaintiff and her brother testify that they both looked westward and listened for a train or the movement of one before driving upon the crossing. The horse attached to the buggy which plaintiff's brother was driving is said to have been a family horse and it was moving forward in an ordinary walk. The buggy was an ordinary one with top in place erect but no side curtains, that is, the top was not inclosed save overhead.
It is argued the court should have directed a verdict for defendant because of the contributory negligence of plaintiff in that neither she nor her brother looked to the westward to discover the presence of the engine, which subsequently while making the coupling, occasioned her injury. But this argument is to be reckoned with in connection with the evidence of both plaintiff and her brother to the effect that they did look and listen at the time. Indeed, it is said they looked and listened both while driving across the street from the northward, approaching the track, and, plaintiff says, until the collision occurred. In view of this positive statement on her part and in her behalf, we are not permitted to declare as a matter of law that the fact exists to the contrary. And especially is...
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