Heine v. St. Louis and San Francisco Railroad Company
| Citation | 129 S.W. 421,144 Mo.App. 443 |
| Parties | JOSEPH HEINE et al., Respondents, v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Decision Date | 06 June 1910 |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis City Circuit Court.--Hon. D. D. Fisher Judge.
Judgment affirmed.
W. F Evans and Jones, Jones, Hocker & Davis for appellant.
The deceased son of plaintiffs was guilty of negligence which proximately caused his own death or which contributed thereto. Hudson v. Railroad, 101 Mo. 13; Gurley v. Railroad, 104 Mo. 211; Lewis v. Railroad, 38 Md. 588; Railroad v. Pinchin, 31 Am. and Eng. Rd Cas. 428; Jones v. Railroad, 13 L.R.A. (N. S.) 1066; 2 Rorer on Railroads, 1055; Moore v. Railroad, 146 Mo. 572; Montgomery v. Railroad, 109 Mo.App. 88.
R. F. Walker and Edward A. Raithel for respondents.
(1) Where the undisputed evidence in a record is susceptible of two inferences, the one consistent with the exercise of ordinary care and the other tending to show contributory negligence, the court must submit the question to the jury. Wyatt v. Railroad, 55 Mo. 485; Norton v. Ittner, 56 Mo. 352; Mauerman v. Siemerts, 71 Mo. 101; Nagle v. Railroad, 75 Mo. 653; Huhn v. Railroad, 92 Mo. 440; Church v. Railroad, 119 Mo. 203; Weller v. Railroad, 120 Mo. 635; Davis v. Railroad, 46 Mo. 185; Fusili v. Railroad, 45 Mo. 541; Duggan v. Railroad, 46 Mo.App. 270; Threlkeld v. Railroad, 68 Mo.App. 131; Wentworth v. Duffy, 68 Mo. 513. (2) In determining whether or not plaintiff has a case to submit to the triers of the joint issues, he is entitled to the benefit of every fact in evidence favorable to his contention, and of every reasonable inference therefrom. Buckley v. K. C., 95 Mo.App. 188; Cogan v. Railroad, 101 Mo.App. 179; Webber v. Railroad, 100 Mo. 194; Drain v. Railroad, 86 Mo. 574; Cook v. Railroad, 19 Mo.App. 226. (3) On a demurrer to the evidence, the court must indulge every inference of fact in favor of the party offering the evidence which a jury might indulge with any degree of propriety. Wilson v. Board of Education, 63 Mo. 137; Buesching v. Gas Light Co., 73 Mo. 219; O'Hare v. Railroad, 95 Mo. 662; St. Louis v. Railroad, 114 Mo. 13; Bender v. Railroad, 137 Mo. 240; Pauck v. Provision Co., 159 Mo. 467; State ex rel. v. Thayer, 5 Mo.App. 429; Brink v. Railroad, 17 Mo.App. 177; Feurt v. Brown, 23 Mo.App. 332; Ecton v. Ins. Co., 32 Mo.App. 53; Walton v. Railroad, 32 Mo.App. 634; K. C. Sewer Pipe Co. v. Smith, 63 Mo.App. 608; Burbridge v. Railway, 36 Mo. 669; George v. Railroad, 40 Mo.App. 433; Davis v. Clark, 40 Mo.App. 515; Field v. Railroad, 46 Mo.App. 449.
The deceased, a minor son of plaintiffs', was killed on the 7th day of February, 1905, by being caught between a coal car and a box car standing on tracks of the defendant, which intersected at an acute angle. The deceased was about nineteen years of age, and at the time of his death, earning forty-five dollars per month. He was employed by the defendant as a yard clerk, and his duties consisted in taking the seal record, numbers, and condition of the doors of certain trains. He had been in the employ of the defendant and in the performance of this work three nights previous to the time of his death. He carried with him, in the performance of his duties, a slip of paper to take seal records on, and also a lantern and pencil.
A bad order or defective coal car had been standing for three or four days on one of the tracks of the defendant, and also on the same track and at a distance of from fifteen to twenty-five feet therefrom, and to the west, stood another car of the defendant, the end of which, next to the defective coal car, was in such a condition that it could not be coupled to the coal car. The trainmen of the defendant were engaged in making up and outgoing train on a track which crossed at an acute angle the track on which the coal and defective box cars were standing, and a box car in this train stood across the track on which the coal car was standing, and they were so close together that there was a space of about twenty inches between one of the east corners of the coal car and the side of the box car on the track upon which the train was being made up. The deceased was engaged in taking the numbers and examining the seals and doors of this outgoing train. There were doors on both sides of the car, standing across the track, and it was the duty of the deceased to examine these doors and seals. When the deceased was found he had his record, but his lead pencil and lamp were found on the ground near his feet.
The evidence tends to prove that his death was caused by the trainmen backing the defective coal car against the other train standing on the other track, and that the deceased was between the east end of the coal car and the box car of the outgoing train and was caught in the collision.
The petition alleges that the defendant was using a defective engine in making up this train, and in moving cars from one track to another in the yards; that the engine was so defective that it would not stop or start readily, and was not subject to the control of the engineer; and that while moving some cars on the track on which the defective coal car was situated, and on account of the defective condition of said engine, the said cars were backed violently against the said disabled coal car, and thereby drove it against the deceased, and caused his death.
The answer, in addition to a general denial, alleged that the deceased came to his death by his contributory negligence in going upon and across the railroad track, and in front of cars which were upon said track, and between the cars upon said track and the car upon the intersecting track, at a time when an engine was switching, handling and moving the cars upon said first named track, and was about to switch, handle and move the cars upon said track.
At the close of the testimony, the court gave an instruction to the jury that the plaintiffs were not entitled to recover. Thereupon the plaintiffs took a nonsuit, with leave to move to set the same aside. In due time a motion therefor was filed, and was sustained by the court, and the defendant has appealed.
There is but one question to be determined, and that is: Did the court err in setting aside the judgment of nonsuit, and thereby declaring the plaintiffs' case was one for the jury? In determining this question, we must be guided by the following principles:
"On a demurrer to the evidence, the court must indulge every inference of fact in favor of the party offering the evidence, which a jury might indulge with any degree of propriety." [Wilson v. Board of Education, 63 Mo. 137.]
In determining whether or not the plaintiff has a case to submit to the jury, he is entitled to the benefit of every fact in evidence favorable to his contention, and of every reasonable inference therefrom. [Buckley v. Kansas City, 95 Mo.App. 188, 68 S.W. 1069.]
Where the undisputed evidence in a record is susceptible of two inferences, the one consistent with the exercise of ordinary care and the other tending to show contributory negligence, the court must submit the question to the jury. [Wyatt v. Railroad, 55 Mo. 485; Huhn v. Railroad, 92 Mo. 440, 4 S.W. 937; Hamman v. Central Coal & Coke Co., 156 Mo. 234, 56 S.W. 1091.]
The law presumes that the deceased was in the exercise of ordinary care and diligence at the time of the accident, until the contrary appears. [Parsons v. Railroad, 94 Mo. 286, 6 S.W. 464.]
The negligence of the defendant was shown sufficiently to carry the case to the jury. There were about fifteen or twenty tracks in the yards where the switching was being done. The engine was leaking its steam so that it did not have its ordinary power, and the testimony tends to show that on account thereof, it could not be controlled; that a train was being made up on one of the tracks; that some of the cars on the track where the coal was standing were to be taken as a part of the train; that the engine backed in on the track for the purpose of getting them, and on account of the defective condition of the engine defendant's servants were only able to take at one time about half of the cars needed; that when they pulled out a part of the cars they returned to get the others, and intended to take all the cars on that...
To continue reading
Request your trial