Harrington v. Chicago, B. & Q. R. Co

• Decision Date: 02 July 1915
• Docket Number: No. 10775.,10775.
• Citation: 180 S.W. 443
• Parties: HARRINGTON v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

180 S.W. 443

HARRINGTON v. CHICAGO, B. & Q. R. CO.

No. 10775.

Kansas City Court of Appeals. Missouri.

July 2, 1915.

Rehearing Denied November 22, 1915.

Ellison, P. J., dissenting.

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

Action by Margaret Harrington against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 163 Mo. App. 194, 146 S. W. 820.

Warner, Dean, McLeod & Langworthy, of Kansas City, for appellant. Jesse James, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued under the statutes of this state to recover damages for the death of her husband, which she alleges was caused by negligence of defendant. At the time of his death, which occurred before 7 o'clock in the morning of December 11, 1909, the husband of plaintiff was employed as a switchman in defendant's yards in Kansas City, and was a member of a crew engaged in switching three loaded cars to an elevated coal shed in the yards. The track ran up on a trestle into, through, and about 100 feet beyond the coal shed, and the cars were to be left in the shed for unloading into bins. The train included a number of cars; the three loaded cars being in front as the train was pushed up the incline. The first attempt of the engineer to push the cars into the shed was unsuccessful, and he pulled the train back, took a fresh start, and came on the second time at higher speed. Owing to defects in the engine, he was unable to stop at the required place, and the front end of the train ran through and beyond the shed, and collided violently with a car of sand standing on the track. Harrington was riding on the end of an empty car just back of the third car of coal. When the collision occurred, he was 15 or 20 feet inside the shed. In response to a signal from the foreman, the engineer pulled ahead until the loaded cars were moved back into the shed, then a workman uncoupled the loaded cars, and the remainder of the train proceeded. Immediately afterward the body of Harrington was discovered on the track at a point about 6 feet outside the shed, or 20 or 25 feet from where he was at the line of the collision. Evidence introduced by plaintiff tends to show that the collision was caused by one or more of the negligent acts pleaded in the petition, but counsel for defendant contend that plaintiff has failed to show that such negligence was the proximate cause of the death of her husband. Their theory is that the proof is more consistent with the inference that Harrington accidentally fell from the train at the point where his body was found than with the contention of plaintiff that he fell in consequence of the collision and was dragged along the track by the retreating train. The case was here on a former appeal of defendant from a judgment recovered by plaintiff in the circuit court, and we held the evidence insufficient to show a causal connection between the collision and the injury. 163 Mo. App. 194, 146 S. W. 820. Speaking through Broaddus, P. J., we said:

"The undisturbed condition of the clothing of deceased and the absence of mutilation of his body, other than where it lay across the track, show beyond all reasonable doubt that deceased fell from the car at or near the place where his body was found, and that he was not jarred from his position by the force of said collision."

We reversed the judgment and remanded the cause for another trial. At the second trial the evidence relating to the cause of the injury was the same as that before us on the first appeal, with the following important additions: Plaintiff introduced witnesses who testified to conditions of the body and clothing of the deceased which would strongly support the conclusion that the body had been dragged along the track. The coroner testified:

"The right arm was crushed, from the elbow to the shoulder. The skull was crushed, the brains oozing from the external auditory meatus; that is, the outer part of the ear. The ear was torn off. The eight upper ribs on the right side and seven upper on the left were broken, and the ends driven into the lungs. The diaphragm was ruptured. The abdominal cavity is down below (illustrating); and the upper cavity (illustrating) is the part of the chest cavity where the lungs and heart are contained. The liver and left kidney were also torn to pieces. The cause of death could have been any of those causes, but I think it `basial fracture of the skull.'"

The undertaker who prepared the body for burial testified:

"Q. You may describe to the jury the condition you found that clothing in at the time? A. Well, it has been a good while ago, but the best of my knowledge, the body was taken in there, and I ordered the clothing taken off— as is the custom—and had the body embalmed and fixed up. The clothes were all cinders and grit, and the face was bruised up and imbedded with cinders, and one side of his face was what we call scuffed, and when we got the clothing off, they were all full of cinders. The clothing was full of cinders, all over. And he was what we call crushed—the body was crushed—from some cause; I don't know what the cause was. Q. These cuts and tears you saw on the clothing, now where were most of those cuts and tears? Were they confined to the upper part— where were those cuts? A. All that clothing was what we call mutilated, or crushed into the body, and there were cinders on his face also, and this clothing was taken off and put aside, and whenever the people wished it we have a salamander and burn them—if they don't take them—whatever is the wish of the family. Q. These cinders in this clothing and embedded in the body—what kind of cinders were they? A. They looked like coal cinders. And we took the body and washed it all off, and embalmed the body and got those out."

Other witnesses corroborate the testimony of the coroner and undertaker as to the crushed and mutilated state of the body and the abraded and dust-imbedded condition of the skin. Coal was being constantly unloaded in the shed, and the track, of course, was covered with coal dust. Counsel for defendant lay most stress on the omission of the evidence of plaintiff to show that the alleged dragging of the body left a trail in the dust or bespattered the track with blood, and argue that the alleged causal relation between the pleaded negligence and the fatal injury is still left by the evidence of plaintiff in the field of conjecture and speculation. We do not accept this view, but to the contrary find that plaintiff has filled the lacuna which appeared in the evidence on the former appeal, and which prompted us to hold that she had failed to sustain her burden of proof.

Plaintiff was not required to prove her case by direct and positive evidence. Her evidence relating to the proximate cause of her husband's death is circumstantial; but, if its acceptance would lead to a reasonable inference that his fall from the train was the direct result of the violent collision, she should be held to have removed the question of proximate cause from the sphere of conjecture, and to have made it a debatable issue of fact for the jury to solve. The facts and circumstances adduced by plaintiff are inconsistent with the theory that Harrington accidentally fell from the train at the point where his body was found, and on reasonable analysis are consistent with no other inference than that urged by plaintiff, viz., that he was thrown from his position on the car by the violent impact of the collision. We must begin with the presumption that he was exercising due care, and that no fault of his caused, or contributed to, his fatal injury. "This presumption of due care always obtains in favor of a plaintiff in an action to recover damages for an injury sustained by him through the alleged negligence of another." Buesching v. Gaslight Co., 73 Mo. loc. cit. 233, 39 Am. Rep. 503; Riska v. Railroad, 180 Mo. 168, 79 S. W. 445; Stotler v. Railway, 200 Mo. loc. cit. 146, 98 S. W. 509. He was an experienced brakeman, accustomed to riding on freight cars while they were being switched, and there was nothing unusual in the movement of the car on which he had been riding when it left the place where his body was found—nothing to have caused an experienced and reasonably careful brakeman to fall from the car. On the other hand, the sudden and unusually violent collision of the train with the sand car, occurring as it did in the darkness and under circumstances which show that it was not anticipated by the brakeman, presents itself as the only natural and reasonable cause of his fall and death. And when we add to this fact the further facts that it was a probable and natural consequence of his fall for his body to be caught by lowhanging parts of the car from which he fell, and be rolled or dragged along the track, and that his body and clothing showed signs of having been thus dragged, we have before us a complete causal chain between the pleaded negligence and the fatal injury. The probative strength of this evidentiary chain is not greatly weakened by the omission of proof relating to marks on the track left by the dragging of the body. Proof of the absence of bloodstains would not have been a conclusive circumstance against the contention of plaintiff, since the injuries do not appear to have been of a nature to cause the shedding of much blood, and the body was incased in heavy clothing. The answer to the argument relating to the failure of plaintiff to prove that the dragging left a trail in the dust on the track is that the coal shed was a place of ceaseless activity, cars of coal were being unloaded day and night, the death of Harrington caused no cessation in the work, and falling dust must have obliterated all traces of the injury in a few hours. To hold plaintiff was remiss in not producing evidence of a condition so ephemeral would be to impose an unreasonable burden upon her. Our...