Hinkle v. Chicago, B. & Q. R. Co.

• Decision Date: 03 December 1917
• Docket Number: No. 18538.,18538.
• Citation: 199 S.W. 227
• Court: Missouri Supreme Court
• Parties: HINKLE v. CHICAGO, B. & Q. R. CO. et al.

199 S.W. 227

HINKLE v. CHICAGO, B. & Q. R. CO. et al.

No. 18538.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Eviza V. Hinkle against the Chicago, Burlington & Quincy Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed on condition.

O. M. Spencer, of St. Joseph, and Warner, Dean, McLeod & Langworthy, of Kansas City, for appellants. Hogsett & Boyle, of Kansas City, for respondent.

BOND, J.

I. This action was instituted against the Chicago, Burlington & Quincy Railroad Company by Mrs. Eviza Hinkle, to recover damages for personal injuries sustained by her on October 7, 1913. She was on her way from her home to Napier, to take a Burlington train to St. Joseph, which left Napier at 4 o'clock in the morning. It had been raining, and at that hour was dark and cloudy. She was riding in a one-horse buggy driven by her son-in-law. As they neared the station the buggy ran into an uncovered culvert extending across the public road. There were no lights or barriers to indicate the open culvert, and the wheels of the buggy ran into this ditch and Mrs. Hinkle was thrown violently to the ground under the feet of the horse. She got to her feet and, with her daughter-in-law, who had been driven to the station in another buggy, boarded the train which had pulled into the station.

The testimony shows that Mrs. Hinkle received severe bruises and cuts on her left ankle and leg; that when she arrived at St. Joseph she stayed in the depot an hour waiting for a train to Unionville, where she intended to visit relatives; that when she got as far as Laclede she began to realize she was hurt, but thought she would go on to Unionville and call a doctor there, which she did. On her return home she called her family physician, who treated her until November 18th, during which time she suffered from infection of the cuts and wounds on her left ankle; that it was then discovered she was also suffering from pneumonia, to which she was susceptible on account of low vitality caused by the infection of her wounds.

As to the negligence charged on account of the exposed culvert, the testimony tends to show that it extended across the county road, which was no part of the defendant's right of way; that the county road overseer, Charles Williams, suggested to Elmer Fike, a section foreman at Napier, that he widen what they termed the "loading dock" on defendant's right of way, as it was too narrow for a wagon to turn safely; that Fike said the railroad company did not have enough dirt, and Williams told him he could get some by cleaning out a ditch on the county road near the loading dock; that he also said to Fike:

"I want the ditch cleaned out, as I am going to put in a new bridge, and when your men get up to that bridge, I will take the culvert out and put in a new one; I want you to clean the ditch out."

This conversation occurred early in the morning, just before 7 o'clock, according to Fike's testimony. He also testified that he instructed one of his men, Banks, to clean out the ditch, and when he returned in the evening the bridge had been torn out; that he (Fike) did not know that it was torn out by Banks until several months afterwards; that he helped Williams place a barricade in front of the ditch, but that this was done after working hours. When asked how the road overseer paid his men, Fike replied that he gave them poll tax receipts, and when further questioned he admitted receiving a poll tax receipt for that year, and that it was for "this ditch business." On cross-examination Fike testified:

"And that receipt covered work done in excavating this ditch? * * * A. Yes, sir; some of them ditches. I don't know which one it covered. Q. I thought you meant to be understood as testifying you did not have anything to do with ditching out the ditch. How does it come that Williams was giving you a receipt and you taking a receipt for digging the ditch? A. I don't know; it is up to him. Q. Explain how. A. The ditch was cleaned out, wasn't it? Q. What was it he gave you this receipt for, if you did not have anything to do with it? A. I did not say I did not have anything to do with it. Q. You did not say you did not have anything to do with it? A. The men were working for me that cleaned out the ditch. Q. I thought you meant to say that. A. That is what I said. * * * Q. You say it was partly your business. To what extent was it your business, this work of cleaning out the ditch? A. I was using the dirt. Q. The railroad company needed the dirt; that is the fact about it, isn't it? A. Yes, sir; we used it generally. Q. That is how you got your poll tax receipt? A. That is about it, I suppose. Q. That poll tax receipt read to you personally? A. Yes, sir."

Fike also testified that Banks, the teamster who cleaned out the ditch and removed the top of the culvert, was an employé of the railroad company, working under his direction.

Louis Banks, a teamster testified that he was employed by the Burlington Railroad Company, at the time of the accident to Mrs. Hinkle, at the rate of 40 cents an hour, and worked under the direction of the section foreman, Elmer Fike; that they were widening the loading dock at that time and Fike directed him to get dirt from under a culvert on the county road near the loading dock; that he had taken out as much dirt as he could without making too much of a ditch when Mr. Williams the road overseer came along; that he...