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

• Decision Date: 31 December 1923
• Docket Number: No. 23857.,23857.
• Citation: 303 Mo. 107,259 S.W. 481
• Parties: HUNT v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Supreme Court

259 S.W. 481

303 Mo. 107

HUNT v. CHICAGO, B. & Q. R. CO.

No. 23857.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Motion for Rehearing Denied March 7, 1924.

Appeal from Circuit Court, Buchanan County; T. B. Allen, Judge.

Action by Flora I. Hunt, administratrix of the estate of David T. Hunt, deceased, against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

H. J. Nelson, of St. Joseph, J. C. Carr, of Kansas City, and J. G. Trimble and E. M. Spencer, both of St. Joseph, for appellant.

Pross T. Cross, of Lathrop, and Mytton & Parkinson, of St. Joseph, for respondent.

SMALL, C. I.

Appeal from the circuit court of Buchanan county. Suit for damages, for the death of David T. Hunt under the federal Liability Act (U. S. Comp. St. §§ 8657-8665) concerning employers. Hunt was killed by a collision between a track Motor car, which he was using, as defendant's servant, and a passenger train of the defendant, in Clay county, Mo., between Liberty and Birmingham. Plaintiff is the widow and administratrix of said Hunt. At the time he was killed, Hunt was engaged as a signal repair man, and was repairing defendant's signal devices, which were used in interstate traffic by defendant, and he was therefore, at the time of his death, September 15, 1917, engaged ha working in interstate commerce.

The petition contained allegations, bringing the case within the humanitarian rule, and further alleged that, at and before said date, under a rule or custom of defendant, the enginemen were required to sound the whistle, before passing around curves, where the view is obscure, for the purpose of warning employees on its track of the approach of trains; that deceased knew of and relied on said rule, which, however, the enginemen violated, and negligently ran over him, upon such a curve, without sounding any whistle as required by said rule. Plaintiff prayed for $60,000 damages.

The answer contained a general denial, assumption of risks, and contributory negligence.

There was a verdict for plaintiff for $14,250, on which judgment was rendered, and from which defendant appealed to this court.

Plaintiff's evidence:

Plaintiff's evidence tended to prove that the deceased left the plaintiff, 32 years old, and an infant child, surviving him. He was 31 years old, when he died, and always had been in good health . He had been a farmer, also a, section man, and had worked at maintaining signals for about two months prior to his death. He was the sole support of his family. His wife is able to work some, but not all the time, as she is not in very good health. His earnings were $70 to $75 per month.

George Sweat, a passenger on the train, which ran over the deceased, testified in substance: He was in the baggage car with his little daughter, taking her to a hospital in Kansas City. She was on a cot. It was a clear day. The sun was shining, and it was very warm. Hunt was killed between Liberty and Birmingham, in Clay county. No whistle or signal was blown before running over him. The baggage car was next to the tender, about 30 feet from the engine. The baggage car doors were open. There was only one road crossing between Liberty and the place where Hunt was struck. Hunt was struck north of that road crossing. After Hunt was killed, the train, after running a quarter of a mile and over that road crossing stopped, and then backed up. It was a slow stop. Did not feel the application of the brakes. The train backed to where the body of Hunt was. It stopped with the baggage car opposite his body. His body was on the east side of the track. Witness and other passengers got off and looked at the body, which was taken into the baggage car. Hunt's motor car (the hand car which he had been using) lay north of his body, about 100 feet. It was torn to pieces. There was a take-off, or kind of dirt dump, or platform, on the east side of the track there. It was used for taking off hand cars. There was an oil can, and other little articles on this take-off. The wrecked motor car lay about 15 or 16 feet south of the take-off, on the east side of the track. This take-off is right at the south end of the curve in the track— an abrupt or sharp curve. It obscured the view coming around. There is first a curve north of the take-off. North of the first curve there are about three or four other abrupt curves. This take-off, where the body was, is three or four miles south of Liberty. These curves obstruct the view. The first curve north of the take-off is in the shape of a letter S. No whistle was sounded. Plaintiff's Exhibit A is a correct picture of the scene where Hunt was killed, except that the leaves were out in full on the trees when he was killed.

Cross-examination: The train was a little late leaving Lathrop that morning. Could not say whether it whistled for all crossings. There were no whistles blown after leaving Liberty until after the accident. After they took on the body, they whistled every few minutes. Witness did not know when the train struck Hunt. He first knew of that when the train backed up. These take-offs are for the men to take off their hand cars or motor cars from the track. He has seen them along the track, and cars resting upon them as trains pass by. The take-off, near where Hunt's body was, was just a little south of the curve. The track was not "plumb straight there." It was just coming off the curve. It was close to the south end of the curve, and at the north end of where the track was straight. Standing on the take-off, as one looks north, it was a curve to the right; as the train was coming from the north, it was a curve to the left. The photograph, Plaintiff's Exhibit A. was taken January 10th, this year, 1922. It does not show far enough south to show where the body was. The man that took the photograph was standing right west of where the body had been. The whistling post would be something like 200 or 300 feet south of the take-off.

Redirect examination: There was no cut or bank alongside of the take-off. The bank was 15 to 20 feet south of the take-off. The foliage was off the trees, when Plaintiff's Exhibit A was taken. At the time of the accident, they were in full foliage. It was about 1,200 or 1,250 feet north of the takeoff to where the track disappeared. At this point defendant's attorney admitted that said signal devices were for the use of all trains, some of which were interstate, transporting passengers and goods from one state to another. The witness continued: Hunt was killed somewhere around 10 o'clock, in the forenoon. The road crossing was 1,408 feet south of the take-off. The train ran 200 or 300 feet south of the road crossing before it stopped. We measured 800 feet of the 1,250 feet we could see up the track from the take-off. Could see up the track further when leaves were off, at the time Exhibit A was taken, when witness estimated he could see up the track 1,200 feet. At the time the accident happened, when the foliage was out on the trees and the undergrowth, one could see up the track from the take-off 800 to 1,000 feet. When witness said he could see 1,200 feet up the track, he meant 1,200 feet from milepost No. 214, which is 220 feet south of the take-off.

Several other passengers on the train testified : The whistle was not sounded after leaving Liberty, prior to the accident. They also testified to the curve in the track, the location of the take-off, location of the hand car, and its condition, and location of the body of Mr. Hunt, substantially as stated by the witness Sweat. Plaintiff thereupon introduced in evidence rule No. 920 of the defendant, which was in force at and before the time of the accident, and was as follows "920. Road crossing whistle must be sounded, before passing around curves, where the view is obscure, between the hours of 6:30 a. m. and 6:30 p. m."

This was all of plaintiff's testimony, at which time defendant offered a demurrer to plaintiff's evidence, which was refused.

Defendant's evidence:

Defendant offered in evidence the following additional rule:

"909. Employees are warned that it is unsafe to remain near the track while engines or trains are passing. Coal, stone, cardoors and other articles, are liable to fall from engines and trains. All are required for their own protection to retire to a safe distance from the track, on the approach of an engine, or train, and to remain so until the engine or train has passed. Employees are further warned that they should not rely on others to warn them of the approach of an engine or a train, but should themselves keep proper guard over their own safety."

Tegler testified: It was Hunt's duty to renew the batteries that operate the signals, by putting in new soda, water, and oil. At first Hunt used a velocipede car, and towards the last he used his own car, a Mudge motor car. The car weighed approximately 400 pounds. Such ears are taken off the track, by taking hold of the rear, and moving them around to the right, and then pulling them off; if they cannot be pulled off that way, you step around and lift them off. The witness employed Hunt for the company, gave him the book of rules and the time cards, and instructed him always to be careful and save himself, if he did not have time to get the car off.

Cross-Examination: Referring to the curves in the track, immediately north of where Hunt was killed, the witness said such curves were not unusual on that road. It was a pretty strong curve, but some curves were considerably sharper than that—that the picture, Plaintiff's Exhibit A, only shows four telegraph poles, before they go out of sight, on account of the sharpness of the curve. The telegraph poles are about 132 feet apart. Witness knew nothing about the accident. Hunt was killed on the track, which was a part of his duty to look after.

Defendant here read in evidence rules 47 and 213, as follows:

"47. Foreman going to and...