Hawkins v. St. Louis & S. F. R. Co.

• Decision Date: 09 February 1909
• Citation: 116 S.W. 16,135 Mo. App. 524
• Court: Missouri Court of Appeals
• Parties: HAWKINS v. ST. LOUIS & S. F. R. CO.

116 S.W. 16

135 Mo. App. 524

HAWKINS v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

February 9, 1909.

1. RAILROADS (§ 367) — USE OF TRACK FOR FOOT TRAVEL — CARE REQUIRED OF TRAINMEN.

A railroad engineer must anticipate the presence of persons on the track used for foot travel, and must use ordinary care to see any one there in time to avoid injuring him.

2. RAILROADS (§ 367) — COLLISIONS — NEGLIGENCE.

The uncontradicted testimony of the engineer in charge of the train that struck decedent on the track used for foot travel by the public that he did not see decedent until within 60 feet of her, because the front of the engine prevented an earlier view as the train passed over a curve, showed that the engineer was not careless as to keeping a lookout.

3. RAILROADS (§ 398) — COLLISIONS — NEGLIGENCE — EVIDENCE.

Where, in an action for the death of a pedestrian struck by a train, the testimony of the engineer that he did not see decedent until within 60 feet of her because the front of the engine prevented an earlier view as the train passed over a curve was not contradicted, and there was evidence that the train was running eight miles an hour, there was no proof of negligence of the engineer as to precautions to save decedent's life after he saw her peril, though a witness testified that the train could have been stopped within 20 or 30 feet, there being an interval of 5 seconds only from the time the engineer saw her and the time she was struck.

4. RAILROADS (§ 398) — COLLISIONS — NEGLIGENCE — EVIDENCE.

Where, in an action for the death of a pedestrian struck by a train, the testimony that the engineer blew the whistle after seeing decedent 60 feet away was satisfactory, and the contrary testimony was weak, and the proof showed that though the whistle had been blown the chance that decedent would have escaped was too infinitesimal for a fair affirmative finding, a verdict for plaintiff predicated on the failure of the engineer to blow the whistle after seeing decedent could not be sustained.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by N. C. Hawkins, administrator, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Defendant's line of railway runs northwest and southeast through the town of Hayti. The depot is toward the northwest part of town, and toward the southeast part another railway, called the "Old Houck Line," joins defendant's line. About the same place there is a spur extending from defendant's line; so there are three railway tracks at the point. The main line runs from St. Louis to Memphis, and it was on that track deceased was struck by a locomotive drawing a passenger train of several coaches. The accident occurred near the junction of the old Houck road, and at the time it occurred a train was standing on said road ready to start to Caruthersville. Some of the witnesses were passengers on that train. Deceased was 64 years of age, of somewhat impaired hearing, of good sight usually but wild hairs in her eyes somewhat dimmed her vision at the time of the accident. She lived in Hornersville, but had been staying with a married daughter, Mrs. Quinn, who resided in Hayti. Her intention was to leave Hayti by the very train which struck her, to visit another daughter, in Gosnell, Ark. It was a foggy morning early in December when she started to walk from the home of Mrs. Quinn in the southeast part of Hayti along defendant's railway to the station in the northwest part of the town. The distance between the two points was from a quarter to a half mile. She was late in her departure, for the train she meant to take had already arrived, and, as said, the locomotive which drew it struck her as she was walking along the track. The track curves after passing Mrs. Quinn's house, but the degree of the curvature was not proved, further than that it was considerable. Some witnesses testified a person standing at the station, or on the crossing of the railway and a public street near the station, could see one walking in the middle of the railway at the spot where deceased was struck by the engine; but this testimony falls short of the main inquiry, which is how far the engineer in the cab of the locomotive could see deceased. The engineer testified he was watching on the right side of the engine cab, but did not observe deceased until she was within 60 feet of the engine, when he immediately blew the whistle, having kept the bell ringing continuously after leaving the station, and, when within 30 feet of her, applied the emergency brakes to stop the train. He said he was unable to see her further away because, on account of the curve in the track, the front part of the locomotive hid her from his sight. Deceased was walking straight toward the locomotive, which had a brilliant headlight burning; but she either did not notice the locomotive, or made no effort to avoid it, until it was almost on her, when she whirled as if to leave the track on the south side, but was struck before she could do so. She wore a sunbonnet with ruffles in front, and was looking down. There is some discrepancy in the testimony of the witnesses regarding how far she had walked along the track after leaving her daughter's. The latter's testimony goes to prove deceased entered the middle of the track as soon as she left the house, and another witness testified he saw her on the track when the train was 200 feet from her. This witness was a passenger on the train on the old Houck road, who happened to look backward out of the window of the coach he was in. Another witness who was on that train testified he saw deceased only an instant before the engine hit her, and when 15 or 20 feet away. This witness gave testimony, but of rather a negative kind, tending to prove neither the whistle nor bell of the locomotive which struck deceased was sounded. One or more witnesses testified plaintiff walked on the track for some distance after leaving her daughter's, then left it and walked on the right of way beside the track, then entered the track again to avoid a small pool of water, and, as she did so, stepped right in front of the locomotive. A few excerpts will be taken from the statements of the witnesses to present the most important facts they related in their own words:

Mrs. Quinn said: "Q. Where did you see her (deceased) the last time you saw her prior to that time? A. Walking on the railroad. Q. Where had she stayed? What time in the day was this you saw her walking on the railroad? A. It was early one morning; I don't know just what time. Q. Was it before sunup? A. It was just about sunrise. Q. Where had she stayed that night? A. Stayed at my house. Q. Had she left your house that morning? A. Yes, sir."

A. J. Fisher testified for plaintiff as follows: "Q. How long was it after you saw her on the track until she was struck by the train? A. It was not but a minute — a half a minute, I don't think; of course I couldn't state exactly how many seconds. Q. On what part of the track was she when you first saw her? A. She was about the center of the track, going down toward the depot. Q. You mean walking down toward the depot? A. Yes, sir. Q. Which way was the train going? A. Going south or southeast. Q. In an easterly direction? A. Yes, sir. Q. About how far was she from the train when you first saw her on the track? A. Well, I couldn't say exactly about that; it must have been nearly the length — about the distance of a telegraph pole apart; it looked like in the neighborhood of it, or hardly that far. Q. About how far is that? Estimate it. A. Well, I don't know, I couldn't say; about 150 — well, it must have been 200 or 300 — feet anyhow. Q. Two or three hundred feet from the engine when you saw her? A. Yes, sir, in the neighborhood of it. Q. You say when you saw her she was up in the middle of the track, walking toward the train? A. Yes, sir. Q. State whether or not you kept watching her then. A. Yes, sir, watched her until I saw her turn, it looked like to the right, and the engine got in my way where I was. I was in this coach, and the engine got in my way, and I couldn't see her when she got off, until the engine — I saw her wheel, it looked like to jump, and I got off and went over there and looked at her. Q. How near was the engine to her when she started to get off the track to the right? A. I couldn't say that, because the engine was in my way; I couldn't tell how many feet it was. I was back here a coach and a half, and the engine shut my view off. Q. State whether or not the engine was right close to her. A. It must have been. Q. From the time you first saw her on the track until you saw her turn to the right as though to get off the track, state what she was doing all that time. A. Well, she was walking, it looked like, to make the train we were on. Q. State whether or not during that time she looked up? A. No, sir, I didn't see her look up at all. Q. Did she keep her head down all the time just like you stated awhile ago when you first saw her? A. That is something that would be hard for me to answer right."

Thomas Gamble testified for plaintiff: "Q. Well, tell how she was walking; describe to the jury her position — how she looked. A. It was all done so quick I couldn't tell much about her position. She was coming down the track and met this engine, and looked as though she made an effort to get off just about the time she got right up in — Q. Until she made an effort...