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

• Decision Date: 05 June 1920
• Docket Number: No. 2676.<SMALL><SUP>*</SUP></SMALL>,2676.<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 224 S.W. 79
• Parties: JUSTUS et al. v. ST. LOUIS-SAN FRANCISCO RY. CO. et al.
• Court: Missouri Court of Appeals

224 S.W. 79

JUSTUS et al. v. ST. LOUIS-SAN FRANCISCO RY. CO. et al.

No. 2676.^*

Springfield Court of Appeals. Missouri.

June 5, 1920.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Action by G. W. Justus and Dollie D. Justus against the St. Louis-San Francisco Railway Company and Walker D. Hines, Director General of Railroads. Judgment for plaintiffs, and defendants appeal. Reversed.

W. F. Evans, of St. Louis, and Mann, Todd & Mann, of Springfield, for appellants.

Moore, Barrett & Moore, of Ozark, and F. T. Stockard and Hamlin & Hamlin, all of Springfield, for respondents.

BRADLEY, J.

On August 4, 1917, plaintiffs' 17 months old child was killed by defendant company's passenger train, and this suit is to recover damages therefor. A jury trial resulted in a verdict and judgment in favor of plaintiffs, and against defendants in the sum of $3,000, and the cause is here on appeal.

The humanitarian doctrine alone is relied on by plaintiffs. The defendant railway company answered by general denial, and the Director General by general denial, and the one-year limitation of section 5429, R. S. 1909. The latter defense is based on the fact that the Director General was not made a party defendant until after the lapse of more than a year from the accrual of the alleged cause of action. In fact the Director General as such was not in existence at the time of the accident, and of course was not then operating the railroad. But the view that we take of the cause makes it unnecessary, to consider the question of limitation, or the Director General's liability. Defendants at the close of plaintiffs' case, and at the close of the whole case, requested instructions in the nature of a demurrer, and these were refused. The disposition of the assignment based on the demurrer will dispose of the case; hence we address ourselves to that question.

Plaintiffs with their six children lived at Billings, in Christian county, where the accident occurred, a short distance east of the depot on the north side of the railroad. The track by their place runs practically east and west. The train that killed deceased was a passenger train, consisting of a baggage car, two day coaches, and six sleepers. The train went through Billings about or shortly after 6:30 a. m., running at 45 or 50 miles an hour. It was not scheduled to stop at Billings, and did not stop there. The track is straight for a mile or more back east of the depot. Plaintiffs' yard joins the right of way, and there is no right of way fence. A path runs from the house a little southwest, and leads down to the railroad. Plaintiffs' family and others had for years been using this path and the railroad as a walkway to a public well and to town. The well was between plaintiffs' house and the depot, and was partly on the right of way and partly on city property. The railroad along in front of plaintiffs' house had likewise been used for years by pedestrians without complaint, and the company knew of such use. Members of plaintiffs' family went frequently every day by the path and the railroad to the public well for water. Some distance east of where the path leads down to the railroad begins a cut about 5 feet deep, through which the railroad approaches the point where the path comes in, and this cut terminates a little west of where the path comes to the railroad. The track through the cut and back east is on a small dump of rock ballast and earth. The banks of this cut are slanting, and it is about 15 feet at and near the path from the foot of the slant to level ground. It is about 210 feet from plaintiffs' house by the path to the right of way. On the incline down the banks of the cut the path was worn down about 8 or 10 inches. Down near where the path reached the foot of the slant and east of the path, but in close proximity thereto, was a small pile of cinders, coal dust, and dirt about 18 inches high. On both sides of the path leading down the slant were grass and weeds about 1 foot or 18 inches high, and close up to the path. From the foot of the slant to the track was about 8 or 10 feet, and in this space, comparatively level, there was no obstruction. The deceased was dressed in a white dress, somewhat discolored.

When the father left his home about 6:30 he led the deceased baby across the floor to the front door, kissed it good-bye, and went his way to work. In 15 or 20 minutes he was overtaken by a friend in a car and advised that the train had struck his baby. The mother and the child's aunt left the room to go to the toilet a few minutes after the father left, and while they were at the toilet the train passed. When they returned the child was missed and a search instituted, and it was found a few feet west of where the path comes down to the railroad, and in about 2 feet of the north rail on the outside. There was some blood and brains on the end of the ties, and on the ground. The child's head was split across the forehead, and it lived only a few hours.

The engineer was called as a witness for plaintiffs, and testified that on the morning of the accident his train was running 45 or 50 miles an hour when he went through Billings; that he kept a careful watch, looked ahead, also that he looked at the steam gauge, and block signals; that as he approached a semaphore of the block system, and he was so approaching at the time, he had to observe it; that at Billings there was an order board, and he had to look out for that, but that all "these looks" only required the fraction of a second; that he made all these observations that morning, and was looking at the track as he approached Billings. At Aurora, 12 miles west from Billings, the engineer, heard that he had struck a child at Billings, and he and his fireman then examined the engine for blood stains or some sign, but found none. The fireman testified that as they went through Billings he was on his seat box opposite the engineer, and opposite from where the child was struck, looking ahead, and that he did not see the child. The engineer stated that, equipped as he was, he could have stopped without injury to the passengers in a distance of 1,800 feet; and he stated that at the point where the child was killed he could have seen an object the size of a good-sized hog a distance of half a mile.

The foregoing is the most favorable statement of facts for plaintiffs that is possible from the record. Under these facts can plaintiff recover? We think not. There is absolutely no evidence tending in the remotest degree to show that the engineer, or any other person connected with the train, saw the child on or near the track; hence the only question is: Could the child have been seen by those in charge of the train by the exercise of ordinary care? Or, put in another way, Does the evidence tend to show that the company's agents were not at the time in the exercise of the care required, and, if so, was that lack of care the cause of their failure to see the child's peril in time to have averted the injury? No one knows just when the child left the house, or what route it took to get to the railroad; but it might be fairly inferred...