Hawkins v. St. Louis & San Francisco Railroad Company

• Decision Date: 09 February 1909
• Citation: 116 S.W. 16,135 Mo.App. 524
• Parties: HAWKINS, Etc., Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

116 S.W. 16

135 Mo.App. 524

HAWKINS, Etc., Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 9, 1909

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

REVERSED.

STATEMENT.--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 sixty-four 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, Arkansas. 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 sixty feet of the engine, when he immediately blew the whistle, having kept the bell ringing continuously after leaving the station, and when within thirty 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 two hundred 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 fifteen or twenty 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 two hundred or three hundred 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 to get off the track, state whether or not she was looking at the train up to that time? A. Well, I don't think she was; I couldn't see.

"Q. Now you have stated she made an effort to get off the track; explain to the jury just what you saw her do? A. She just made a motion to move like she was trying to get out of the way, as though she ran upon it before she saw it.

"Q. Which way did she turn in facing the train, to her right or left to get off? A. She turned to the right.

"Q. That then threw her left side to the train--to the engine, wasn't it? A. Yes, sir, I suppose it was."

Calvin Chism for plaintiff testified:

"Q. Is the road straight or does it curve? A. It curves.

"Q. Between her (Mrs. Quinn's) house and the pecan tree? A. Between her house and the pecan tree, yes, sir.

"Q. What is the extent of the curve? A. I couldn't say; I am not very well acquainted--how long is it do you mean?

"Q. Yes, sir, is it much of a curve or just a slight curve? A. Well, it is right smart of a curve; I don't know just how much or anything about that.

"Q. Is that on the main line? A. Yes, sir."

Deceased was hit probably about forty feet from the pecan tree referred to by the witness.

Another witness said, regarding the curve:

"Q. How is the track there, straight or curved? A. It is curved.

"Q. From where Mrs. Quinn lives, does it curve to the right or to the left? A. Going toward the depot from Mrs. Quinn's it is curved to the left.

"Q. Is it a considerable curve? A. Yes, sir.

"Q. How long is that curve? A. It is probably a half a quarter; the road commences curving, I think, near Mrs. Quinn's and curves until it gets past the scene of the accident; it is gradually curved around there."

Gilbert Wallace, for defendant, testified:

"Q. Where was she when you first saw her? A. When I first saw her I had gone out on the step of the car; I was standing out on the step and it was just getting light, just a little bit twilight, and I saw her coming below the crossing.

"Q. What crossing? A. The public crossing there.

"Q. How far was that from you? A. It was not very far, probably thirty or forty yards approximately, and I saw the object; it was kind of misty or foggy a...