Foster v. West
| Decision Date | 22 May 1916 |
| Parties | DICIE FOSTER, Respondent, v. THOMAS H. WEST, W. C. NIXON, and W. B. BIDDLE, Receivers of THE SAINT LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot County Circuit Court.--Hon. Frank Kelley Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, Moses Whybark and A. P. Stewart for appellants.
Ward & Collins for respondent.
--The plaintiff recovered a judgment for $ 3000 for the death of her husband who, while a trespasser on defendant's railroad track, was run down and killed by defendant's train. The receivers of the "Frisco Railroad" then operating such road are the defendants, but for convenience we will speak of the railroad company as defendant. The plaintiff concedes that the deceased was negligent, both in using defendant's track as a footpath for travel and in not giving proper attention to trains approaching from his rear. The cause of action is based solely on the humanitarian doctrine in that defendant's servants operating this train saw the deceased in abundant time to have avoided his injury and negligently failed to do so after they realized, or as reasonably careful and skillful employees, should have realized deceased's peril. This is practically the only point in the case, as defendant insists that a verdict should have been directed for it, and the objection to plaintiff's instruction, submitting the case to the jury on this theory, goes to the question of there being no evidence sufficient to sustain the instruction.
In determining the issues the physical facts become important, though such facts are practically undisputed. The train causing this injury was a light one, consisting only of engine and caboose, equipped with air brakes and was a special not running on a regular schedule time. It was traveling north approaching the station of Micola, in Pemiscot County, some mile or more from the place of the accident. The deceased was also traveling north toward this same station, walking in the middle of the track. The train came around a curve about a half mile south of the place of the accident and from this on north the track was straight, unobstructed and almost level. The deceased was in plain view from the time the train rounded the curve and both the engineer and the fireman saw and observed him from that point until the train struck him. It was a clear dry day and the train was under perfect control. There was a road crossing near the end of the curve and another about a quarter mile further north. The usual whistle signals were given for both these crossings, to which the deceased gave no apparent heed. The train, when at this second crossing, was following the deceased, and near a quarter mile from him. On passing the second crossing and the deceased showing no indication that he was aware of the approaching train, the engineer began sounding the alarm signals and continued to do so until the engine was within two or three hundred feet of deceased. When the deceased still continued walking down the track with no indication, so far, that he was aware of the approaching danger or was intending to leave the track, the engineer shut the throttle and put on the emergency brakes. The train was not stopped in time to avoid striking the deceased, and the engine came to a stop some eighty-five to a hundred and twenty feet beyond. The deceased's conduct is explained by the fact that he was hard of hearing, though of course the trainmen did not previously know this fact.
The engineer testified that he was in charge of the train, consisting of an engine and caboose, running north from Turrell, Ark., to Chaffee, Mo. That after coming around the curve south of Micola, he saw a man walking north in the center of the track. That he was on the right hand side of his engine and the fireman was on the left hand side, and the conductor and two brakemen were in the caboose. That after coming around the curve, he whistled two or three road-crossing whistles, which consist of two long blasts and two short blasts of the whistle. That the man just kept walking up the track. That after sounding the road-crossing whistle, he blew the stock alarm, which is a succession of short blasts of the whistle, and he continued to do so until he got within 200 or 300 feet of the man, who had not yet looked around or changed his gait or direction but was walking in the middle of the track, and saw he wasn't going to get off, and he then closed the throttle and shut off the steam from the cylinders and applied the brakes in emergency. That the air brakes were all right and in good working order. That after shutting off the steam and applying the air in emergency, he did not sound any danger signal. That at the time he shut off the steam and applied the air in emergency, his train was running about thirty miles an hour, and it had checked down to about fifteen miles an hour at the time the man was struck. That just before he was struck, he seemed to be kind of walking off to the side of the track, had his foot off the rail out on the ties, had already stepped over the rail and was in the act of stepping off the track, when the pilot beam struck him. That the engine, tender and caboose were about eighty or ninety feet in length. That when the train stopped, the rear end of the caboose was from fifteen to thirty feet past where the man was lying on the ground. That at the time he had been a locomotive engineer for about four years, and prior to that had about five years experience on trains. That after realizing that the man did not hear the train running or the danger signal, he could not have stopped his train any quicker than he did because he gave the emergency at that time, shut off the steam and applied the emergency. That when he applied the air in emergency the train was going about thirty miles an hour. That it takes a couple of seconds to shut off the engine and three to five seconds after the air is applied until the brakes take effect on the wheels, and that during this time the train is still moving at thirty miles an hour. That after applying the air in emergency and shutting off the engine there is nothing else he could do toward stopping the train, unless he reversed the engine, but at that rate of speed you might tear the engine all to pieces and slide the wheels and you couldn't stop as quick as if you didn't reverse it. That to reverse an engine at a speed of thirty miles an hour would tear the running gear up or slide the wheels. That he did not know deceased and had never seen him before this day, and did not know anything about his being deaf; that he did not know there was anything wrong with him until he saw he wasn't going to get off the track.
The fireman testified that he first saw Foster on the track just after the train came around the curve south of Micola; that they were a little more than a quarter of a mile from him at that time. That as they came around the curve the engineer blew the crossing whistle, and after they got around the curve he began blowing the stock alarm. That the engine was about 250 to 300 feet from the man when the engineer shut the throttle and applied the brakes in emergency; that at that time the man was between the two rails, and when they got a bit closer it seemed like the man turned and looked over his left shoulder, but he didn't get all the way off. He looked as though he saw the train, and then started diagonally off toward the right hand side. That he did not see him hit, because the front end of the boiler blocked his view. That when the engine stopped, the front end of the engine was about eighty-five feet past the man, and the rear end of the caboose about thirty feet past where he was lying.
There was evidence on behalf of plaintiff that this train could have been stopped with safety in 100 to 150 feet. But this seems rather incredible and plaintiff at the argument stated that this evidence is not relied on for an affirmance. This difference, however, may largely arise from not taking into account the time lost and distance covered in putting on the brakes and their taking effect on the wheels. The fact that the trainmen say the speed was reduced from thirty to fifteen miles per hour in passing over the 200 to 300 feet before striking the deceased and was then brought to a stop in eighty-five to a hundred feet more, supports this theory. But however, this may be the engineer, skilled in handling trains and engines, must be held to have known approximately in what distance this train could be stopped under the existing conditions and, if it be true that this train could not be stopped within the distance it was from deceased when he first tried to stop it, he knew that fact and should have taken it into consideration when his engine was gradually approaching the deceased. According to his own evidence, it took at least five seconds to put on the brakes and have them take effect, and in that time the train running thirty miles per hour would pass over at least 200 of the 250 to 300 feet between the engine and deceased. Should not a skillful and prudent engineer have taken this fact into consideration in determining when to put on his brakes? It is well said in Dutcher v. Railroad, 241 Mo. 137, 165, 145 S.W. 63;
The...
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