Harper v. St. Louis Merchants Bridge Terminal Co.

• Decision Date: 28 February 1905
• Citation: 86 S.W. 99,187 Mo. 575
• Parties: HARPER v. ST. LOUIS MERCHANTS BRIDGE TERMINAL CO.
• Court: Missouri Supreme Court

86 S.W. 99

187 Mo. 575

HARPER v. ST. LOUIS MERCHANTS BRIDGE TERMINAL CO.

Supreme Court of Missouri.

February 28, 1905.

RAILROADS — LICENSEES — DEATH — DERAILMENT — NEGLIGENCE — PROXIMATE CAUSE — CITY ORDINANCES — CONSTRUCTION — APPLICATION — REAR BRAKEMAN — DUTIES — PLACE OF PERIL.

1. Where an ordinance provided that no train should be moved within the city limits unless manned with experienced brakemen, who should be so stationed as to see the danger signals and hear the signals from the engine, it contemplated that they should be so located that they could not only see and hear danger signals, but could give them to those whose duty it was to receive and obey them.

2. Where, in an action for death of a licensee by derailment of a freight car, the rear brakeman, from his position on the side of the car, was in plain sight of the front brakeman, and there was no causal connection between such rear brakeman's position and decedent's death, it was immaterial that he was not in his usual station on top of the car at that time, under a city ordinance requiring brakemen to be at their posts and so stationed as to be able to see danger signals and hear signals from the engine.

3. Where a rear brakeman on a freight train was stationed on the side of the rear car, his duty to give a warning signal on derailment of the car did not require that he remain on the car in a position of danger, and apply the brakes in order to shorten the stop after derailment.

4. In an action for death of a licensee, caused by the swinging of a derailed car attached to a

freight train, facts held insufficient to establish that defendant, by the exercise of ordinary care, could have stopped the train in time to have avoided striking deceased.

In Banc. Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Sallie Harper against the St. Louis Merchants Bridge Terminal Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

McKeighan, Wood & Watts and Wm. R. Gentry, for appellant. P. H. Cullen, Jos. S. McIntyre, and Robt. Shackelford, for respondent.

LAMM, J.

The vital facts of this case are: J. B. Harper was a sign tacker. Cass avenue is an east and west thoroughfare in St. Louis, 60 feet between building lines and 30 feet from curb to curb. Florida street also runs east and west, and lies north of Cass. Appellant operated its switch engines to shift freight cars on tracks which, from the south, crossed Cass avenue on a downgrade with reverse curves, and bore to the northeast. At this point was a cluster of tracks, the west one of which concerns the case. Along the west side of this west track, running northeastwardly from Cass avenue, lay a passway for pedestrians on appellant's vacant ground of a width varying from six to eight feet, where many people for many years daily passed to and fro from Cass avenue to Florida street without let or hindrance. Flush with the north line of Cass avenue, with its east or rear end abutting on said passway, stood Woolfert's livery stable, and on said rear or east end sign tackers for a long time, using it as a common billboard, had tacked signs exploiting the wares of manufacturers and venders, by the acquiescence of the stable proprietors. On the forenoon of October 25, 1900, Harper was standing on a short ladder, plying his trade. The foot of the ladder, it seems, was planted in said passway a little north of the southeast corner of the barn, and he was in the act of tacking a tobacco sign on the barn, when a derailed freight car in a short train pulled north on said west track in charge of appellant's servants, and the rear end of the car, swinging to the west, wedged Harper against the barn, smashed him and drove his hammer into his neck, killing him instantly. The plaintiff, as widow, sued for $5,000 penalty under section 2864, Rev. St. 1899, recovered judgment, and defendant appealed.

In a voluminous petition she lays many acts of negligence at defendant's door. There was dirt on the rails, she says, with sand and débris of timber and stone; the track was laid in sharp curves; the rails were not securely fastened to the ties; the rails were spread and worn, so as to be insufficient to support the cars; the roadbed was spongy, the ties rotten; the cars had broken and weak wheels, axles, and supports; no watchman or gates were kept or maintained at the crossing as provided by ordinance; defendant's agents running the train negligently "gave said train violent kicks," and then negligently "gave said train sudden, violent jerks," and pulled said train at an unlawful rate of speed at an excess of six miles per hour, a rate denounced by ordinance, and failed to keep a lookout for persons on its tracks and premises and in said passway, and ran its train without sounding its bell, and negligently failed to keep said train in control. Not content with this bristling array of specified points, on any one or all of which it was sought to impale defendant, plaintiff charged furthermore that her husband was killed by "the criminal intent of the officers, agents, and servants and the employés of defendant in manner and form and under the circumstances aforesaid." The state of the proof was such that none of the foregoing specifications were submitted to the jury. The theory the cause was tried on is found in two averments of the petition, viz.: (1) That the train ran in violation of section 1753 of an ordinance of the city of St. Louis, the pertinent clause of which is as follows: "* * * And no freight train shall at any time be moved within the city limits unless it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine"; and (2) in the further allegation: "Plaintiff states * * * that the said J. B. Harper had no knowledge that said car was off the track and running as aforesaid, but the officers, agents, and servants of the defendant, whilst so running said freight train, knew this fact, or might have known it by the exercise of ordinary care, and that the said servants knew or might by the exercise of ordinary care have known that plaintiff's husband was at or near the southeast corner of said building, and in great danger of being killed; and that after the agents, officers, and servants of the defendant knew, or might have known by the exercise of ordinary care, that said car was off the track and plaintiff's husband in a position of peril, they, the said agents and servants, negligently and unskillfully failed to stop said car, when, by the exercise of ordinary care on their part, said car could have been stopped, and the injury and death of plaintiff's husband averted; and the said agents also failed and neglected to give plaintiff's husband any warning of danger, and, if they had done so, his life could have been saved. * * *" Referring to the first issue submitted to the jury, the proof failed to show the brakemen on the train were inexperienced, so that the first allegation of negligence was narrowed down to the question of whether the train was well manned by brakemen at their posts so stationed as to see danger signals and hear signals from the engine, and the issue was submitted in that form. Referring to the second issue submitted to the jury, it was presented on the theory that the derailment was unaccounted for, and that no liability was predicated of negligences leading up to the derailment itself, but that the only question was whether defendant, by the exercise of ordinary care, after it discovered or should have discovered by the use of such care that the car was off the track and running wild, could have stopped the train in time to have prevented Harper's death. At the trial respondent was allowed to introduce section 1753 of said ordinance containing the "well manning" clause aforesaid, over the objections of appellant, and error is predicated thereof.

There was an immaterial conflict in the evidence bearing on the initial point of the derailment. On the one hand, respondent's proof tended to show that the rear truck of the rear car jumped the track at a distance varying, as estimated by the eye, from 20 to 70 feet south of the south building line of Cass avenue. One of her witnesses estimated it at 80 feet south of the south curb line, another at 125 feet south of Woolfert's stable, and another at from 20 to 40 feet south of the building line. None of the witnesses measured the distance, but the marks of the derailed...