Henson v. St. Louis-San Francisco Ry. Co.

• Decision Date: 03 December 1923
• Docket Number: No. 23646.,23646.
• Citation: 256 S.W. 771,301 Mo. 415
• Parties: HENSON v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

256 S.W. 771

301 Mo. 415

HENSON v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 23646.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Robert Henson against the St. Louis-San Francisco Railway Company. Judgment for plaintiff and defendant appeals. Reversed, without remanding.

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

Atkinson, Rombauer & Hill, of St. Louis, for respondent.

Statement.

RAMEY, C.

This action was commenced by plaintiff in the circuit court of Butler county, Mo., on March 9, 1921, to recover damages alleged to have been sustained by him in a collision with defendant's motor car in Scott county, Mo., on September 21, 1920. The petition alleges that defendant, a Missouri corporation, at the dates mentioned therein, operated a line of railroad through the town of Crowder, in Scott county, Mo., and through Butler county in said state; that for the last 10 years the space between the rails of defendant's track running from its depot in said town of Crowder to a point more than one-half mile in a southerly direction "was habitually and hourly used both day and night by the public as a foot path, and that said foot path at all times ran through a populous community, of all which facts, the defendant, its officers, agents, servants, and employes at all times knew, or by the exercise of ordinary care could have known"; that along said portion of said track used as a foot path it was the duty of defendant and its servants in operating motor cars along said railroad at that point to keep a constant lookout for pedestrians on the railroad track. It is averred that on September 21, 1920, while plaintiff was walking along said foot path between said railroad tracks, going south from Crowder, and when about one-fourth of a mile south of same, the defendant and its servants, operating a motor car going north along said railroad track, "negligently failed to keep a constant lookout for pedestrians upon said foot path along said railroad track; negligently ran said motor car at that point at a high rate of speed, to wit, 25 miles per hour; negligently ran said motor car at that time, which was night, without adequate brakes, and without light or other signals or devices to warn pedestrians of its approach; negligently failed to warn plaintiff of the approach of said motor car; and negligently ran said motor car and caused the same to collide with the plaintiff, who was in a position of peril, and oblivious of his danger, and that the operators of said motor car knew or by the exercise of ordinary care could have known of the presence of the plaintiff upon said railroad track, and of his peril and his obliviousness of his danger in time to have stopped the car and prevented his injury by the exercise of ordinary care but continued to operate said car in a negligent manner as above set out, causing it to collide with plaintiff as aforesaid, thereby and thus breaking plaintiff's left leg," etc. After setting out plaintiff's alleged injuries, the petition concludes with a prayer for $20,000 damages.

The answer contains a general denial and plea of contributory negligence. The reply is a general denial of the new matter pleaded in the answer.

Plaintiff's Evidence.

John Scholtz, a witness for plaintiff, testified in substance that he had lived at Chaffee for 15 years, and had been in the service of defendant during that time, and was in its service on September 29, 1920, working in its yards at Chaffee; that he was on the motor car which collided with plaintiff; that the collision occurred about a half to a quarter of a mile below Crowder, in Scott county, Mo.; that at the time of the collision Joe Belk, Floyd Clemons, and himself were on the car; that all three were in the service of defendant; that Floyd Clemons was foreman of the crew, and was operating the car at that time; that they were running between Morehouse and Crowder, going into Chaffee; that the collision occurred between 6 and 6:30 p. m.; that it was just beginning to get dark; that the collision occurred on September 21, 1920; that in his opinion the track was pretty straight and level each way from the place of collision for about one mile; that there was a nice little path between the rails in the center of the track, padded nice, where the collision occurred; that the path ran north and south from the place of collision; that there was no light on the motor car before the collision. Over the objection of defendant, witness was permitted to testify that they had a horn on the car; that it was not sounded at all; that "before the collision of that motor car with plaintiff I saw the plaintiff walking on the track. He was walking right straight toward us, going south"; that it looked to witness as though plaintiff was coming down the center of track; that just as he looked at plaintiff he thought the latter made one step to get off the track; that he started to get off, and about that time was hit. Witness further testified:

"When I saw him we were about one rail length from him, about 30 feet. I had my face kinda down a little bit; I had on a pair of these goggles; at that time the air was pretty bad about being full of bugs and grasshoppers and things of that kind, and we wore goggles to keep them out of our eyes, and I had raised my goggles, and was trying to get a bug out of my eye, and I happened to look up, and I saw something in the center of the track; I couldn't see what it was, couldn't tell, and then about that time we hit him. That was the first I had noticed he was there, and at that time I don't think the brakes had been applied. I figure we were going about 20 mile an hour, probably between 20 and 25 miles an hour. The motor car had brakes on it; it was the duty of the man operating the car to operate the brakes too. We run about 75 or 100 yards probably by him before be stopped it. I realized that we had hit a man just as soon as we hit him. Just as soon as we could stop the car we went back up there and picked him up, the three of us, and put him on the car with us."

He said plaintiff was in the middle of the track when he first saw him; that it looked to him as though plaintiff made one step to get off the rail.

On cross-examination witness said the accident, occurred about one-half mile south of Crowder; that he and Joe Belk were carpenters, and had been out doing some work for defendant; that the car was used for that purpose; that there were two seats in front and one behind; that he (witness) was sitting in front on the left-hand side of the car; that "Clemons (the foreman) was sitting right behind us" and was operating the car; that he could not tell what Clemons was doing as he was behind witness; that he did not look back just before the collision, and did not know what Clemons was doing; that he thought the car was traveling from 20 to 25 miles per hour; that it made a lot of noise and he thought a man could hear it a mile off; that it was a still, clear night; that he figured plaintiff would step off, and he looked like he started to step off; that "when I first saw him we were something like 30 feet from him, about a rail's length, and I think a rail length is 30 feet, or 33 feet." He said: "I don't know whether the man behind me who was operating the car had seen him before 7, did or not, or whether he undertook to stop; I had my back to him. I don't know whether he put on the brakes just before we struck him"; that after striking plaintiff the car ran about 75 yards, but he never stepped the distance; that while the car was running 18 miles per hour it could be stopped in eight rail's length, or 240 feet; that while running 20 miles per hour with the emergency brakes on it took 264 feet in which to stop the car; that he thought all the men on the car saw plaintiff about the same time; that when he first discovered plaintiff it was so dark he could hardly tell it was a man. This witness, without objection, testified as follows:

"Q. After you saw him on the track, was there anything that could have been done by any of you three men to have prevented striking that man? A. No, sir."

He testified that he had seen people traveling on this pathway between the rails while he was going to work; that he never saw any one along there after dark; that this was the first time he ever saw anybody on the track there after dark; that the pathway looked like it had just been built; that when the car was within 30 feet of plaintiff there was nothing that could be done to keep the car from hitting him on account of its speed; that he was facing the plaintiff, and was in front of the man driving the car; that all three of the men on the car had a clear view up the track; that he did not "think the brakes were applied until we struck the man".

On recross-examination witness said the man operating the car was behind him, and that he could not state as a fact that the brakes were not set until they struck plaintiff; that the car weighed about 1,500 pounds, and was operated by gas power.

Stephen Pratt, a witness for plaintiff, testified that he had seen people walking on defendant's track south of Crowder since the accident, but did not live at Crowder before plaintiff was injured, and never saw any one on the track before that time.

Robert Henson testified in his own behalf that he was 66 years old at time of trial; that he was hurt about one-half mile south of Crowder; that the last thing he remembered was that he was going south on the railroad track to Morehouse; that he was walking between the two rails, going toward Morehouse, and was about one-half mile from Crowder when hurt; that he never saw the car, nor did he hear it; that he never saw any light, and had no warning; that he was in the middle of the track before he was hit; that he did not know how the accident occurred; that he was walking in the middle...