Hammontree v. Payne, No. 22825.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDavid E. Blair
Citation296 Mo. 487,246 S.W. 915
PartiesHAMMONTREE v. PAYNE, Agent.
Docket NumberNo. 22825.
Decision Date08 December 1922
246 S.W. 915
296 Mo. 487
HAMMONTREE
v.
PAYNE, Agent.
No. 22825.
Supreme Court of Missouri, Division No. 2.
December 8, 1922.
Motion for Rehearing Overruled December 22, 1922.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Jeanette C. Hammontree, administratrix of Robert P. Hammontree, deceased, against John Barton Payne, Agent of the United States. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans, of St. Louis, John H. Lucas and Wm. C. Lucas, both of Kansas City, and W. W. Wood, of Humansville, for appellant.

Herman Pufahl, of Bolivar, and C. W. Hamlin and Hamlin & Hamlin, all of Springfield, for respondent.

DAVID E. BLAIR, J.


Action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for wrongful death of plaintiff's decedent. Judgment below was for plaintiff in the sum of $10,000, and defendant has appealed.

Respondent was the wife, and is now the administratrix, of the estate of Robert P. Hammontree, deceased. On November 24, 1919, Hammontree suffered such injuries through alleged negligence of a train crew in the switchyards of the St. Louis-San Francisco Railway Company at Springfield, Mo., that he died two days thereafter. Deceased was a clerk in the bridge and building department of said railroad at Springfield. While returning from his lunch on said day he was fatally injured in passing between two cuts of freight ears through an opening left therein for the passage of employés from one side of the yard to another. An engine with one car was attempting to couple onto a string of four cars. The coupling was not made at the first effort, and a second and more forceful effort was made, which caused the four cars to move backwards quickly and close the gap of five or six feet through which deceased was passing. He was caught between the couplers of the cars, and his death resulted.

Deceased had worked in the same office for about 10 years and, according to some of the witnesses, habitually crossed through the switchyards rather than go around the public streets. There was a much-used path through the yards where employés crossed from one side of the yard to the other, in going to and from the yardmaster's office. The string of freight cars standing on the transfer track had been cut, and an opening left convenient for crossing the track at this pathway. Shortly before 1 o'clock and in broad daylight, the switching crew of defendant, consisting of engineer and fireman, a brakeman and foreman, was engaged in the switching movement above referred to. The engine was not over 200 feet from deceased as he came along the path near the corner of the yardmaster's office. No obstructions cut off his view of the engine or any part of the switching movement. He was an experienced man and, by frequent observation at least, familiar with the work the switching crew was attempting to do.

The foreman of the switching crew testified that he caught a glimpse of the deceased 50 or 60 feet from the track as he came around the yardmaster's office, walking in the direction of the transfer track. He did not see him again Until after he was injured. None of the other employés connected with such switching movement saw the deceased at all.

The defendant operates a railroad through Missouri and into adjoining states, and a large portion of its business is interstate commerce. Deceased was a clerk in the bridge and building department, which had to do with the building of bridges and culverts for said railroad, over which both intrastate and interstate trains passed.

The petition charged negligence of the switching crew in the following language:

"That when the agents, servants, and employés aforesaid first attempted to make the coupling with the four cars aforesaid, they saw the deceased going towards said passway and saw his perilous or apparently perilous position in time to have warned him of the danger in trying to cross said track through said passway, or by the exercise of ordinary care and diligence could have seen him and warned him of the danger in trying to cross said track through said passway, or could have placed a watchman at said passway, while they were attempting to make the coupling aforesaid, or they could have waited until he crossed said track before making the second effort to couple said cars, and, knowing the dangerous position and peril of the deceased, or which by the exercise of ordinary diligence they could have known, they, the said...

To continue reading

Request your trial
7 practice notes
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...Mo. 564; Evans v. Railway Co., 178 Mo. 508; Gabal v. Railway Co., 251 Mo. 257; Bruce v. Railway Co., 271 S.W. 762; Hammontree v. Payne, 296 Mo. 487; Riddell v. Railroad, 316 Mo. 960. There being no substantial evidence of the negligence charged, deceased assumed the risk. Authorities, supra......
  • Carpenter v. Kurn, No. 37705.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1941
    ...59 S.W. (2d) 648; Smith v. Wells, 326 Mo. 525, 31 S.W. (2d) 1014; Degonia v. St. Louis, I.M. Ry. Co., 224 Mo. 564; Hammontree v. Payne, 296 Mo. 487; Gabal v. St. Louis & S.F. Ry. Co., 251 Mo. 257. (e) Peril and obliviousness alone are not sufficient. No duty arises until the peril and o......
  • Voorhees v. Railroad Co., No. 29565.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1930
    ...Wabash Railroad Co., 178 Mo. 508, l.c. 517, 77 S.W. 515; Cahill v. Railroad Co., 205 Mo. 393, l.c. 408, 103 S.W. 532; Hammontree v. Payne, 296 Mo. 487, l.c. 495, 246 S.W. 915.] We must conclude, therefore, that the engineer owed plaintiffs' decedent no duty to discover him in his perilous p......
  • Owen v. Kurn, No. 36865.
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1941
    ...187 S.W. 11; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 463; State ex rel. Lusk v. Ellison, 271 Mo. 468, 196 S.W. 1089; Hammontree v. Payne, 296 Mo. 487, 246 S.W. 915; Voorhees v. C., R.I. & P. Ry. Co., 325 Mo. 835, 30 S.W. (2d) 25; Goodwin v. Mo. Pac. Ry. Co., 72 S.W. (2d) 991; Nivert v.......
  • Request a trial to view additional results
7 cases
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...Mo. 564; Evans v. Railway Co., 178 Mo. 508; Gabal v. Railway Co., 251 Mo. 257; Bruce v. Railway Co., 271 S.W. 762; Hammontree v. Payne, 296 Mo. 487; Riddell v. Railroad, 316 Mo. 960. There being no substantial evidence of the negligence charged, deceased assumed the risk. Authorities, supra......
  • Carpenter v. Kurn, No. 37705.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1941
    ...59 S.W. (2d) 648; Smith v. Wells, 326 Mo. 525, 31 S.W. (2d) 1014; Degonia v. St. Louis, I.M. Ry. Co., 224 Mo. 564; Hammontree v. Payne, 296 Mo. 487; Gabal v. St. Louis & S.F. Ry. Co., 251 Mo. 257. (e) Peril and obliviousness alone are not sufficient. No duty arises until the peril and o......
  • Voorhees v. Railroad Co., No. 29565.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1930
    ...Wabash Railroad Co., 178 Mo. 508, l.c. 517, 77 S.W. 515; Cahill v. Railroad Co., 205 Mo. 393, l.c. 408, 103 S.W. 532; Hammontree v. Payne, 296 Mo. 487, l.c. 495, 246 S.W. 915.] We must conclude, therefore, that the engineer owed plaintiffs' decedent no duty to discover him in his perilous p......
  • Owen v. Kurn, No. 36865.
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1941
    ...187 S.W. 11; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 463; State ex rel. Lusk v. Ellison, 271 Mo. 468, 196 S.W. 1089; Hammontree v. Payne, 296 Mo. 487, 246 S.W. 915; Voorhees v. C., R.I. & P. Ry. Co., 325 Mo. 835, 30 S.W. (2d) 25; Goodwin v. Mo. Pac. Ry. Co., 72 S.W. (2d) 991; Nivert v.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT