Grant v. Kansas City Southern Ry. Co.

• Decision Date: 01 December 1916
• Docket Number: No. 18528.,18528.
• Citation: 190 S.W. 586
• Parties: GRANT v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

190 S.W. 586

GRANT v. KANSAS CITY SOUTHERN RY. CO.

No. 18528.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Motion to Modify Judgment Overruled December 20, 1916.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Suit by Nina E. Grant, administratrix, etc., against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and judgment rendered for defendant.

The widow of Arthur Grant and the administratrix of his estate brought this suit in the circuit court of Jackson county against the defendant to recover the sum of $10,000, damages for the alleged negligent killing of her husband. She had judgment below for that sum, and the defendant appealed the cause to this court. This is the second appeal. The first was taken to the Kansas City Court of Appeals, and the opinion is reported in 172 Mo. App. 334, 157 S. W. 1016. At the first trial, the circuit court sustained a demurrer to the plaintiff's evidence, and rendered judgment for the defendant. Upon appeal the judgment of the trial court was reversed, and the cause remanded for a new trial.

The injury occurred in the state of Arkansas, and the original petition counted upon common-law negligence and a statute of that state. Upon the cause being remanded to the circuit court an amended petition was filed eliminating the statutory ground and increasing the claim of damages to the sum of $10,000.

The main facts of the case are clearly and tersely stated by Judge Ellison in the following language:

"Plaintiff is the administratrix of the estate of Arthur Grant, who was fatally injured by being run over by one of defendant's trains at Mena, Ark., which she charges was caused by the absence of an `iron handhold' on the end of the tender of the engine. Deceased was in the employ of defendant as head brakeman on a freight train. The train had left a point 60 miles south and had arrived at Mena, where the engine and crew were to be changed, and the train be taken thence on north by another engine and crew. When the train arrived at Mena a freight train, also bound north, was standing in on the siding, which made it necessary that the train involved in this controversy stand on the main track just below the switch; the engine being perhaps 150 feet from the rear of the other train. There each stood for near an hour, waiting for a south-bound passenger train to arrive. When the latter train got in, the freight train standing on the siding began to move out, making room for the train in controversy to move in and clear the main track so the passenger could pass on its way. It did immediately begin to move, following closely on the outgoing train, but intending to stop at the upper end of the siding, where the engine would be detached and a fresh one and new crew substituted. It was deceased's duty as head brakeman to be on the front end of the car next to the engine while approaching or moving through a station. Presumably during the long wait he had left the train, intending to board it as it started into the siding. At any rate, as the train began to move forward, the engineer (plaintiff's witness) saw him about 150 feet up the track walking back towards the engine on the east side of the track. He walked by the engine as it moved on at about 3 miles an hour. He had his lantern, and was last seen by the engineer when opposite the rear end of the tender and about 4 feet east of it. There was a step at the rear end of the tender, and there had been above it an iron `handhold.' With the aid of these one could climb on top of the tender. So there was a `ladder' at one or the other end of the car next to the tender. But at this time the handhold was not there, and there was evidence tending to show that it had been missing several days. The train, which was near a quarter of a mile in length, went on into the siding, stopping with the engine up at the upper end. Deceased was found lying by the side of the track near where last seen, with his arm about crushed off, so that it was amputated, and from the effect of which he died in 24 hours. He being dead, and, there being no eyewitnesses, the engineer being the last one to see him before the catastrophe, the question to be determined, if possible, is what caused his injury and what part in its happening did he himself take? The theory of plaintiff is, and her case depends upon its correctness and the proof of it, that in the dark he did not see the absence of the handhold, and in reaching for it, at the same time attempting to put his foot on the step, he stumbled and fell with his arm under the car. Whatever tendency there was in the testimony of the engineer, was to disprove this; for he last saw him opposite the handhold and 4 feet to the east walking away, and to reach it he would have to turn and run back."

The evidence introduced at the second trial differed but little from that of the first. The defendant introduced no evidence at either trial.

For the purpose of clarifying plaintiff's theory of the case, I will state some parts of the evidence which is largely taken from counsel's statement of the case:

Finally, the train ahead started up, and at the same time some one on the rear end of it gave the engineer of Grant's train a "mooch" signal, meaning to follow it carefully, and come in on the stock track. McDougal says: "Q. Did you get a signal from the other train to start? A. Yes, sir; the man on the rear end of the caboose gave us what we term a mooch signal, or follow him along there carefully. Q. That was the man on the rear end of the train that had been occupying the stock track? A. Yes, sir." Thereupon Grant's train started up, carefully following the train ahead in onto the siding, going no faster than a man would walk.

At the time Grant's train thus started northward he was on the ground on the east side of his train. It was his duty as head brakeman to see that the switches ahead of his train were lined up. The derail switch was always left open, except when a train was about to come in on the siding as his train was then doing. Knowing this, Grant ran ahead and crossed the track in front of his engine from left to right, traveling northeastward to the derail for the evident purpose of seeing that it was lined up. He crossed the track in this manner, went to the derail, stooped down with his lantern, examined the derail, signaled his engine to come on, and stepped eastward to allow it to pass, all of which was done after the engine had started moving in on the stock track. "Q. So as Grant ran on ahead of your engine your engine was moving northward, covering that space, which was no greater than from where you are and the wall, and he cut in ahead of your engine in that space? A. Yes, sir. Q. And all that time you were shortening that distance? A. Yes, sir; after he looked at the rail, he turned around and gave me a signal to come on." At the time he thus signaled he was on the right-hand or east side of the track. As the engine advanced toward it on the east side, the engineer at first thought he was going to get onto the gangway between the engine and the tank. It was his duty to get on and ride northward the few car lengths that remained for the train to travel before being brought to a standstill, and then to cut the tank loose from the train after the train had been brought in upon the siding so that its rear was clear of the main line. "Q. Whose business was it to detach the engine, after you got up there? A. The head brakeman. Q. Grant? A. Yes, sir. * * * Q. In detaching one of these engines—this engine No. 491—was there some sort of a crank on it by which the pins are lifted? A. What they call a pin lift. Q. Is that lift at the side of the engine? A. Yes, sir. Q. So a man, in order to detach the engine, would stand down here at the corner of the tank, would he (showing witness Exhibit C)? A. Yes, sir. Q. Speaking of detaching the engine, you mean to detach the engine tank from the next car behind it? A. Yes, sir; from the train."

Grant did not get on the gangway, but allowed it to pass him, and continued south alongside the tank, toward its rear end, in a crouching or stooping attitude. The engineer testifies that Grant continued southward to a point opposite the rear corner of the tank where this grabiron was off. This is the last that the engineer or any one else who testified saw of him until after he was hurt.

Although McDougal says Grant was then slightly east of the line of the tank, he does not testify to the distance positively. He says: "About 4 feet out, as near as I could judge, from the engine." "He was out from it a little distance, still going south." In no place in his testimony does he estimate with greater positiveness this eastern distance. "Q. Did you see him make an effort at all to get onto the tender? A. No; he was walking rather fast in a stooping position." Afterward he changes this and denies that he ever said that Grant was walking rapidly. "Q. Well, at any rate, he started immediately, and had walked at a rapid pace southward, until you did last see him, is that true? A. I don't understand what you are getting at. Q. It does not concern you what I am getting at. A. I didn't say he walked rapidly. I said he walked along at a good gait; that is not rapidly." "Q. Did he walk as much as a car length south of the derail, before you last saw him? A. I couldn't tell you. Q. Did he walk as much as two car lengths south of the derail, when you last saw him? A. I couldn't tell you. Q. It might have been more or less than that? A. Yes, sir. Q. He might have been right at the derail, when you last saw him, might he not? A. He was south of the derail. Q. Was he more than 10 feet south of the derail; would you be able to say? A. I couldn't tell you. Q. Then it might have been as short a distance as ten feet? A. I could not tell you; I would not be positive." McDougal does not say he...