Helm v. Missouri Pacific Railway Company
| Decision Date | 22 December 1904 |
| Citation | 84 S.W. 5,185 Mo. 212 |
| Parties | JOSIE HELM v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Jno. W. Henry, Judge.
Reversed.
Elijah Robinson for appellant.
(1) Plaintiff's own evidence shows that she was not entitled to recover and therefore the court should have sustained defendant's demurrer to the evidence. Russell v Barcroft, 1 Mo. 662; Lee v. David, 11 Mo. 114; Bolen v. Railroad, 36 Mo. 484; Alexander v Harrison, 38 Mo. 258; McFarland v. Bellows, 49 Mo. 311; Charles v. Patch, 87 Mo. 450; Hunt v Railroad, 89 Mo. 607; Hyde v. Railroad, 110 Mo. 272; Havens v. Railroad, 155 Mo. 216; Sharp v. Railroad, 161 Mo. 214; Roberts v. Tel. Co., 166 Mo. 384. There must be substantial evidence in support of plaintiff's case; otherwise the court should direct a verdict for the defendants. The doctrine that the case must be submitted to the jury where there is a scintilla of evidence is no longer, if it ever was, the law of this State. Courts will not stultify themselves by giving credence to evidence which is in conflict with conceded physical facts, against reason, and contrary to common observation and experience. State v. Anderson, 89 Mo. 332; State v. Bryant, 102 Mo. 24; State v. Turlington, 102 Mo. 642; State v. Nelson, 118 Mo. 124; State v. Brown, 119 Mo. 527; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 4; Payne v. Railroad, 136 Mo. 583; 4 Elliott's Railroad Law, sec. 1703. (2) Defendant is not liable for the consequence of an accident which was not caused by it and which its engineer could not foresee or anticipate. The evidence in this case shows clearly and conclusively that the death of plaintiff's husband resulted from an accident, which occurred without fault upon the part of the defendant, and which defendant's engineer could not have foreseen or anticipated; and therefore the court should have sustained defendant's demurrer to the evidence. Beasley v. Transfer Co., 148 Mo. 421; 21 Am. and Eng. Ency. of Law, 497. (3) The engineer had a right to assume that the deceased would not get into a position of danger. Moody v. Railroad, 68 Mo. 470; Maloy v. Railroad, 84 Mo. 270; Boyd v. Railroad, 105 Mo. 371; Feidler v. Railroad, 107 Mo. 652; Hyde v. Railroad, 110 Mo. 278; Reardon v. Railroad, 114 Mo. 384; St. Clair v. Railroad, 133 Mo. 240; Kreis v. Railroad, 148 Mo. 333; Sharp v. Railroad, 161 Mo. 214; Railroad v. Black, 98 Ala. 313; Frazier v. Railroad, 81 Ala. 185; Meredith v. Railroad, 108 N. Car. 616; Johnson v. Railroad, 13 Am. and Eng. R. R. Cases, 626, and note; Railroad v. Graham, 95 Ind. 286; Palmer v. Railroad, 112 Ind. 254; Railroad v. Pitzer, 109 Ind. 196; Railroad v. Miller, 25 Mich. 279.
Frank P. Walsh, Porterfield, Sawyer & Conrad and R. J. Ingraham for respondent.
The evidence of respondent tended to show that deceased got his feet entangled in the tools, and was in a position of peril when the train came around the curve six hundred feet away; that he struggled from that time until the train struck him; that he was close enough to the track to be in danger; that he did not get out of that position from the time the engine came into view, about six hundred feet away, up to the time it struck him and knocked him across a forty-five foot street; that there was ample time and space within which to stop the train before it reached and struck him; that the track was straight, and, therefore, the train men could have seen his peril. Disinterested witnesses did see his peril, while the train traversed from three hundred to six hundred feet. This evidence, together with all reasonable inferences, must be accepted as an absolute verity in passing upon the demurrer. Gratiot v. Railroad, 116 Mo. 466; Kelly v. Railroad, 95 Mo. 281. It was therefore right to submit the case to the jury. The fact that appellant's witnesses testified to the contrary did not deprive respondent of the right to have this question of fact submitted to the jury; and the court did right in submitting it to the jury. Sullivan v. Railroad, 117 Mo. 214; Chitty v. Railroad, 166 Mo. 441; Klockenbrink v. Railroad, 172 Mo. 678; Carter v. Railroad, 156 Mo. 642; Tempo v. Railroad, 83 Mo.App. 69; Kellny v. Railroad, 101 Mo. 67; Kelley v. Railroad, 95 Mo. 279; Guenther v. Railroad, 95 Mo. 286. Unlike most cases presented to this court, there is no question of contributory negligence in this case -- excepting the assertion of it in appellant's answer. It is not a case of an adult section man standing, in full possession of his faculties, upon a railroad track. But, on the contrary, it is the case of a man who, by misfortune, is not in possession of his power of free locomotion, and is in a position of danger while the train traverses a long distance.
This is an action, under the statute, for five thousand dollars damages, caused by the killing of the plaintiff's husband, by a regular passenger train, at a point in Kansas City, where the defendant's tracks cross Lydia avenue, about nine o'clock, a. m., on August 26, 1899. The plaintiff recovered a judgment for five thousand dollars, and the defendant appealed.
The petition charges three acts of negligence on the part of the defendant, to-wit: first, a violation of the railroad speed ordinance of the city, which made a greater rate of speed than six miles an hour a misdemeanor, punishable by a fine; and the acceptance thereof by the defendant in consideration of a grant by the city of a right to construct a switch track on Front street; second, common law negligence in running the train, in a populous part of the city, "at a rate of speed which, under the surroundings and circumstances, was negligent and dangerous;" and, third, so negligently, carelessly and unskillfully running the train as to run over the deceased after it knew or by the exercise of ordinary care could have known of the peril to which he was exposed, and in not stopping the train after it knew or could have so known of such peril in time to have avoided the injury.
There was no such speed ordinance or acceptance thereof attempted to be shown, nor was the case tried upon the theory of the plaintiff's right to recover on account of a violation thereof. So that nothing further need be said as to the first averment of negligence.
The answer admits that plaintiff was the wife of the deceased, and admits the killing, but denies that the defendant was guilty of any negligence, alleges contributory negligence on the part of the deceased, and concludes with a general denial of all allegations of the petition that are not admitted to be true.
The facts developed upon the trial are these:
The railroad runs east and west and Lydia avenue runs north and south. For a distance of six hundred feet west of Lydia avenue the track is straight and level and there is nothing to obstruct the view. The deceased was a section hand in the employ of the defendant, was forty-three years of age, and possessed of all his faculties and had been working as a section hand for about four months. About seven o'clock of the morning of the accident, the deceased went to the place of the accident, on a hand car, with the section gang, to repair the track. They unloaded their picks and shovels and tools and a water keg from the hand car onto the ground south of the track and just west of Lydia avenue. There was a telegraph pole about six feet south of the track, and they placed the water keg just west of the telegraph pole, and left some picks, shovels and tools lying on the ground between the telegraph pole and the track. They then went to work repairing the track just east of Lydia avenue. The eastbound passenger train was due to pass that point about nine o'clock. About that time the deceased left the place at which he was working and went across Lydia avenue and to the water keg to get a drink of water. In so doing his face was turned towards the west in the direction from which the train was to come. He reached the water keg, got a drink of water, put the top on the keg and placed the cup on the top of the lid. The train was composed of an engine, a mail car, a baggage car and two coaches, and was equipped with air-brakes. These facts are conceded to be true by both parties. What happened after this is the subject of controversy.
The plaintiff called three witnesses who saw the accident, to-wit, James W. Havens, Mack McConnell and Vaughan. The first, Havens, was one hundred and fifty feet east of the place of the accident. The second, McConnell, was on top of a hill, south and east of Lydia avenue, and was two hundred and fifty feet distant from the place of the accident. The third, Vaughan, was standing at a window of the Gille Hardware Company, at First and Lydia avenues, which was from two hundred and fifty to three hundred feet from the place of accident. They all say that after the deceased had taken a drink of water he staggered or stumbled and his feet seemed to get "tangled" up with the tools and he was trying to move and could not.
Havens says that when the deceased got so "tangled up" with the tools, the train was from two hundred to six hundred feet from him (he stated both distances at different times in the course of his examination). Later, on being recalled for further cross-examination, this witness identified a written statement he had made just after the accident in which he testified as follows:
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