Hach v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 27 November 1907
• Citation: 106 S.W. 525,208 Mo. 581
• Court: Missouri Supreme Court
• Parties: HACH v. ST. LOUIS, I. M. & S. RY. CO.

106 S.W. 525

208 Mo. 581

HACH v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. TRIAL—DEMURRER TO EVIDENCE—EFFECT.

A demurrer to the evidence admits, as true, every fact and legitimate inference which the jury might draw from the evidence.

2. MASTER AND SERVANT—DEATH OF SERVANT —RAILROADS—NEGLIGENCE—QUESTION FOR JURY.

In an action for death of a railroad engineer by the derailment and overturning of his engine owing to a broken rail, evidence held to require submission to the jury of the question of defendant's negligence in permitting the track to become defective at the point where the accident occurred.

3. APPEAL — REVIEW—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Where, in an action for the death of a railroad engineer caused by the derailment of his engine, the real issue was whether the road at the point in question was in a reasonably safe condition, and the jury found that it was not, defendant was not prejudiced by the admission of evidence that defendant did not furnish a sufficient force of men nor sufficient materials to keep the road in a proper and safe condition, the reason why the road was not in a safe condition being immaterial.

4. SAME.

Where there was no intimation that evidence that defendant did not furnish sufficient men and materials to keep its road in a reasonably safe condition was offered to influence the jurors and increase the verdict, and such objection was not raised at the trial, defendant could not object on appeal that the evidence, which was otherwise harmless, might have been prejudicial for that reason.

5. MASTER AND SERVANT—INJURIES TO SERVANTS—ASSUMPTION OF RISKS—PRESUMPTION OF PERFORMANCE OF DUTY.

A railroad company owes a duty to its employés to use ordinary care to keep its track and roadbed in a reasonably safe condition for the passage of trains, and the employés, in the absence of evidence to the contrary, are entitled to presume in the performance of their work that the duty has been properly discharged, and therefore do not assume risks of injury resulting from the master's omission or neglect of such duty.

6. SAME—INSTRUCTIONS.

An instruction that if deceased was killed while in the discharge of his duty as defendant's locomotive engineer by the overturning of his engine, caused by the breaking of a rail, and defendant failed to use ordinary care to keep its roadbed and track in a reasonably safe condition, and at the time and place of the accident the road was out of repair and unsafe, because of the unsound ties under the rail which broke, which facts could have been ascertained by the exercise of ordinary care, etc., and the breaking of the rail and derailment of the engine were due to such condition of the road and unsound ties, plaintiff was entitled to recover, was proper.

7. DEATH—ACTION FOR CAUSING—DAMAGES.

In an action for death of plaintiff's husband, she was entitled to recover such sum as would justly and fairly compensate her for the necessary injury resulting from such death, considering decedent's age, health, and earning capacity, not exceeding $5,000.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Ida Hach against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See 93 S. W. 825.

The plaintiff instituted this suit in the circuit court of Butler county to recover the sum of $5,000 damages for the death of her husband, caused by the alleged negligence of the defendant "in permitting the roadbed of its railroad to be in an unsafe and dangerous condition, and in failing to replace the decayed and rotten ties upon which the broken rail rested by sound and sufficient ties, and having the same properly ballasted," and that in consequence thereof, while her husband, an engineer in the employ of defendant, was running his engine and train of cars over said defective place on said road, it was derailed and turned over, and he was caught underneath thereof and crushed and scalded to death by the escaping steam. The answer was a general denial, and a plea of assumed risks. There was a trial before the court and jury, and a verdict and judgment for plaintiff for the sum of $5,000, and defendant has duly appealed the cause to this court.

The facts are practically undisputed, and are substantially as follows: The plaintiff and deceased were husband and wife at the time of his injury and death, and he was an engineer, in the employment of defendant. The accident occurred on a branch line of defendant's road, running from Cairo, Ill., to Poplar Bluff, Mo., about one mile west of Sikeston. The train was running west with deceased in charge of the engine, and when it reached the point above indicated the engine and some 10 or 12 of the cars were derailed, and the engine turned over and caught and crushed deceased, and before he could be released he was scalded to death by escaping steam. All the evidence shows that at the point of the accident, and immediately thereafter, it was discovered from 2 to 6 feet of the east end of a rail was broken off, and that from 2 to 20 ties were rotten, some of them very badly, and several of them were broken in two, and that one tie rested under the east end of the broken rail and that it was very rotten, so much so that it had been crushed by the weight of the engine and cars, and had left a depression where it should have been. The evidence also showed that at the point of the break in the rail it rested upon and was spiked to a sound tie, and that the break was slantingly from the top of the rail downward. There was also evidence tending to show that the roadbed was not properly ballasted, that is, there was too much earth and sand in the center of the bed and not enough at each edge thereof, which prevented the ends of the ties from resting on the ground. We will permit three of defendant's employés to describe the accident in their own language, which is as follows:

C. C. Hardy, who had been a railroad man for 24 years, a conductor for the defendant company 6 years, and in its employ for 16 years, testified: "Q. I will ask you if you made an examination then to see what caused the wreck, and, if so, I will get you to state what you found and what you did? A. Yes, sir; I made an examination, looked to see what caused the wreck and how it occurred, and, in my opinion—. Q. What did you see there? A. I saw that there were broken and rotten ties there and a broken rail. Q. A broken rail? A. Yes, sir; a broken rail. Q. Describe to the jury this broken rail you saw. A. Well, from indications, that rail had been broken by a train west-bound, as the ball of the rail was battered and torn as though the flange of the engine wheel had cut down through the rail. It looked like the flange of the engine wheel had cut down in there and thrown the engine over. Q. What is the ball of the rail? A. It is the top. Q. What do you call the bottom of the rail? A. It is the base. Q. And what do you call the space between the bottom and top? A. The web. Q. How much of the rail was broken off? A. About 6 or 7 feet. Q. You saw that rail broken? I mean, what was the character of the break, describe it to the jury? A. Well, it was not a square break of the rail. The rail was cut under; a jagged break. Q. What indications, if any, did you see on the long part of the rail? A. The web of the rail was cut as though it had been done by the flange of an engine or car running down it. Q. Did you notice anything else besides that cut? A. Not on the web of the rail. Q. Notice anything on the ball of the rail? A. Yes, sir; the ball of the rail was battered. Q. Which end of it was battered? A. The east end of the rail. Q. At what part of the ball? A. Top. Q. Top? A. Yes, sir; top. Q. Did you fit the two pieces of rail together? A. Mr. Mulkey, roadmaster, Mr. Garner, the bridge foreman, and myself did. Q. Was there any indication of the short piece of rail being battered? A. No, sir; there was none. Q. If I understand you correctly, the batter was on the top of the east end of the broken long part? A. On the long part; yes, sir. Q. By what, in your opinion, was that end battered? A. My opinion is that it was battered by the wheels of the engine or cars striking it of a west-bound train. It could not have been done by an east-bound train, because the short part would have been battered, instead of the long. Q. Now, Mr. Hardy, I will get you to state if you noticed the ties there? A. The ties immediately where the wreck occurred were all broken and torn up. Q. Did you notice the condition of the tie at the place where this broken rail had been connected to the rail immediately east of it? A. That was a rotten tie. Q. Did you notice the fish plates? A. Yes, sir; they were broken. Q. Attached to the short piece, were they? A. Broken parts of them were. Q. I will get you to state what, in your opinion, caused that rail to break? A. Well, there was a weak spot there. The joint tie and the fish plates, or angle bars, being broken, allowed the engine to go down and break the rail. Q. Was that rotten tie still there under the east end of the rail? A. The rotten tie was there. The roadmaster showed it to me."

Cross-examination: "Q. Then, in your opinion, the weight of the west-bound engine striking that rail caused the rail to break? A. Yes, sir. Q. You said it was a west-bound engine, and in your opinion the rail was not broken till that west-bound engine struck it. A. That is my opinion. Q. You know, don't you, that a train passed over that same piece of track about 10 or 15 minutes before No. 79? A. I guess they met at Sikeston, that is their meeting place. Q. This rail that was there was a standard steel rail, was it, that is, it was a medium weight steel rail? A. Yes, sir. Q. What is that, a 60-pound rail or 75-pound? A. I think it is about a 56-pound rail. Q. And on that rail freight trains were running...