Hitz v. St. Louis Southwestern Ry. Co.

• Decision Date: 03 January 1911
• Citation: 133 S.W. 397,152 Mo. App. 687
• Parties: HITZ v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

133 S.W. 397

152 Mo. A. 687

HITZ v. ST. LOUIS SOUTHWESTERN RY. CO.

Springfield Court of Appeals. Missouri.

January 3, 1911.

1. TRIAL (§ 337)—INSTRUCTIONS—VERDICT.

The jury must base its verdict on the instructions, and the judgment rendered on the verdict must stand or fall on the theory of the law declared in the instructions.

2. NEGLIGENCE (§ 4)—ACTS CONSTITUTING— REASONABLE CARE.

The legal measure of liability for negligence is what an ordinarily reasonable and prudent man would anticipate when acting under a given state of facts, and when an ordinarily reasonable and prudent man would not anticipate an injury to another from his act, there is no actionable negligence arising from the failure to take precautions to prevent injury, in cases where reasonable care only is required.

3. MASTER AND SERVANT (§ 137)—INJURY TO SERVANT—OPERATION OF TRAINS—DUTY OF TRAINMEN.

Trainmen having a right to anticipate a clear track need not keep a watch along the track in front of the train, and their failure to keep a lookout is not actionable negligence.

4. MASTER AND SERVANT (§ 240)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

Employés working on a railroad track must protect themselves from approaching trains, and where an employé places himself in such a position that he cannot see an approaching train he is guilty of negligence precluding a recovery for injuries caused by being struck by a train, though the trainmen failed to warn him of the train's approach.

5. MASTER AND SERVANT (§ 240)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE—EVIDENCE.

The acting foreman of a railroad track gang was struck by a train. It was customary for him to warn the men of the approach of trains. Had he looked or listened for a train he would have seen or heard it. He was standing sideways to the direction in which the train was coming, holding a trainman's lantern to see what there was to do. He had been an assistant foreman for a long time. Held, that he was guilty of contributory negligence as a matter of law, precluding a recovery.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Johanna Hitz against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action commenced in the circuit court of the city of St. Louis to recover damages on account of the killing of Casimer Hitz, an assistant foreman of a crew of sectionmen engaged in working in and about the Union Station Yards in the city of St. Louis, Mo. The suit was brought by the plaintiff as the widow of the deceased. Upon trial, the plaintiff obtained judgment for the sum of $4,000, from which the defendant perfected an appeal to the St. Louis Court of Appeals. The cause was thereupon transferred to this court, and the parties by their respective attorneys, before the argument, expressly waived the question of the jurisdiction of this court to hear and determine the cause, and the same was submitted on this agreement.

The plaintiff stated for her cause of action that the agents and servants of the defendant while in charge of its train and running upon its track, negligently ran upon and killed Casimer Hitz; that defendant's servants wholly and negligently failed to ring the bell or sound the whistle to warn the said Casimer Hitz and the men of his crew of the approach of the train, and failed and neglected to have the headlight burning on the front of the engine to warn the said Casimer Hitz and his crew. It is further alleged that the servants and agents of the defendant company saw Casimer Hitz while in a dangerous and perilous position or could by the exercise of ordinary care have seen him and warned him of the impending danger, or could have brought the train under their charge to a stop before said train ran upon and against the said Casimer Hitz and thereby averted the fatal injury. There were also charges of negligence against the Terminal Railroad Association of St. Louis, which was made a joint defendant with the appellant herein, but the plaintiff took a nonsuit as to such defendant, and it is therefore unnecessary to set out the charges of negligence against it. The answer, besides a general denial, set up a plea of contributory negligence, charging, among other things, that on said occasion the said Casimer Hitz was negligently and carelessly upon said track and carelessly and negligently failed to look and listen for the approach of the engine and cars when by looking he might have seen, or by listening might have heard, an engine and cars approaching, and thus have avoided the injury. The plaintiff's reply was a general denial.

The accident occurred in the Union Station Yards of the Terminal Railroad Association of St. Louis, at about 10 o'clock on the evening of December 26, 1907. The evidence tended to show that it was a clear, still, warm night—the moon and stars shining, hardly any wind, no fog, and the atmosphere not clouded in any way. The accident occurred at or near cross-over track No. 171, which was to the north and east of tower No. 1, and led from track No. 38 to track No. 39, all of which has been made clear by photographs reproduced in the abstract. The Union Station Yards were owned, controlled, and operated by the Terminal Railroad Association, which controlled or managed all trains inbound or outlined over its tracks to and from the Union Station in the city of St. Louis. All the railroads entering St. Louis, 27 or 28 in number, used these yards as a passenger terminal. About 280 passenger trains went in and out of the train shed daily. In addition, engines of the Terminal Association and of other railroads frequently passed over the tracks. In the train shed of said yards were 32 tracks, and trains were drawn into and out of the train shed over a system of main leads or tracks. The movement of trains, as we have said, was under the control of the Terminal Association, which directed the movement by means of an interlocking plant and signals operated from tower No. 1. The complicated nature of the yards and the system of tracks in said yards on the night in question is clearly shown by the photographs in the abstract. Tower No. 1, in those yards, faced the train shed, and there were no obstructions between tower No. 1 and the train shed, nor between the point at which the accident occurred and the train shed, except only the supports of the several bridges and possibly some of the electric light poles located in the yards. The train of the defendant which is supposed to have struck deceased and caused his death on the night in question left the train shed from track No. 7 therein, and under the direction of the Terminal proceeded out under bridge No. 3 and bridge No. 5, onto the main track—No. 38—and then under bridge No. 8, over the grand crossing, past the place of the accident, and out of the yards.

The deceased was an employé of the Terminal Association. Oliver Johnson was the foreman of the terminal yards at tower No. 1, and Casimer Hitz was his assistant foreman, but Hitz at the time of the accident, in Johnson's absence, was acting as foreman. He frequently so acted. The members of the gang under his charge that night were five in number—Kelly, Lyons, Keating, Dougherty, and Eberle. Just prior to the time the accident occurred, Hitz and the five men composing the gang had been at work repairing the track known as cross-over track No. 171. Their work was practically completed, there being only two more spikes to drive. Lyons, Eberle, and Kelly were engaged in that work. Lyons, standing with his back to bridge No. 8, was engaged in the act of driving, or was about to drive these spikes, and Kelly was holding a torch down in front of Lyons towards the track for him to see the spikes. Hitz was standing in track No. 38 with a lantern in his hand, doing nothing at the time. He was not doing any of the actual labor. The lantern held by Hitz was a regular railroad lantern, such as trainmen use. He was standing some distance farther from the grand crossing (probably 20 feet) than Kelly and Lyons, facing sideways in the track. While Lyons had his back to the oncoming train, Hitz had his left side to it, his back towards tower No. 1, and he was facing approximately toward the train shed. The other section hands were in the immediate neighborhood. The place where Kelly and Lyons were working was about 125 feet from the grand crossing, and about 800 feet from the entrance to the train shed. The grand crossing, referred to in the evidence, was the point where three main tracks, numbered 41, 42, and 43, crossed three other main tracks, numbered 37, 38, and 39. Over the grand crossing was located bridge No. 8, containing signal devices for directing movement of trains. The grand crossing and bridge No. 8 were immediately north of tower No. 1. The movement of trains was controlled by the Terminal from tower No. 1.

While the men were standing in the positions indicated, one of appellant's trains, consisting of an engine and five coaches, came out of Union Station and passed over track No. 38 and near the place where these sectionmen were working, and killed two of them—Casimer Hitz and Kelly. On the night in question, the evidence shows that one of appellant's regular trains left Union Station on its scheduled time, at 9:55 p. m., and passed tower No. 1 at 9:57 p. m. Its locomotive was in charge of the usual and customary crew consisting of an engineer and fireman. The engineer was seated at his usual and customary place on the right-hand side of the engine. According to his testimony, he was looking for signals from the Terminal; signals being displayed overhead from bridges 1, 3, 5 and 8. He knew nothing about the accident until the train was some distance out of St. Louis when he heard of it. The curve of the track was such that it was impossible for this engineer, from his proper place in the cab, to see the point at which this section gang was working....