King v. Wabash R. Co.

Citation211 Mo. 1,109 S.W. 671
PartiesKING v. WABASH R. CO.
Decision Date01 April 1908
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Daviess County; J. W. Alexander, Judge.

Action for wrongful death by Cora A. King against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. L. Minnis and Frank P. Sebree, for appellant. Henry L. Eads, E. M. Harber, and A. G. Knight, for respondent.

GRAVES, J.

Plaintiff for a short while— seven months—was the widow of one S. J. R. Turner, who was killed by one of the defendant's engines. After the institution of this suit, but prior to the trial, she married one King. She had judgment below for the statutory penalty of $5,000, and defendant appealed. The death of said Turner occurred within the corporate limits of Pattonsburg, Mo. Plaintiff pleads that there was, at the point where the accident occurred, a continuous user of defendant's right of way and tracks by pedestrians, of which said user the defendant had full knowledge, and this the evidence tended to prove. The petition further pleads an ordinance of the city to this effect.

"Sec. 1. It shall not be lawful, within the limits of the city of Elm Flat, for any car, cars or locomotives propelled by steam power, to run at a rate of speed exceeding six miles per hour.

"Sec. 2. It shall not be lawful, within the limits of the city of Elm Flat, for any car, cars or locomotives propelled by steam power, to obstruct any street crossing by standing thereon for longer than ten minutes. And when moving, the bell of the engine shall be constantly sounded within said limits, and if any freight car, cars or locomotives propelled by steam power, be backing within said limits, a man shall be stationed at the top of the car at the end fartherest from the engine to give danger signals. No freight train shall at any time be moved within the city limits without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine. The steam whistle of danger shall, in no case, be sounded in giving the usual signal for running trains."

It was shown that the city of Elm Flat by proper steps became Pattonsburg. It was claimed that deceased met his death by a backing engine which was run at a rate of speed in excess of the speed limit, and said train was run without ringing the bell and without being manned as required by the ordinance, and without having a man stationed on the car "fartherest from the engine to give danger signals." The accident occurred about 3 o'clock in the afternoon. Deceased who lived north and east of the city was coming to town to make some purchases, among other things, some coal oil. For this oil he had a half gallon bottle which he was carrying in his hand. We mention this now for it becomes material later. In Pattonsburg, the main track of defendant's railway runs east and west. There were two sides or switch tracks, one to the north and one to the south of this main track and parallel therewith. The train in question had arrived from the west. On the north switch track were the stock yards or stock pens. The switch stand or connection of this south switch track with the main track was some 500 feet east of the depot, and that of the north switch track some 450 feet east of the depot which would make the connection of the north switch track with the main line some 50 feet west of the connection of the south switch track with the main line. Such was the situation to the east of the depot, and this is the only situation material to the issues of this case. It was in this vicinity that the evidence tended to show a continuous user over and across the tracks of defendant, by pedestrians. The main portion of the town was to the south of these tracks, but there were some residences on the north side thereof and those residents as well as people from the county continuously crossed these tracks. At one of the footpaths across them they had even constructed and maintained a footbridge across the barrow pit. When this freight train came in from the west, the engine was cut loose from the train, and was run down to the east of the switch stand for the north switch track for the purpose of backing in upon this north track to get a car at the stock yards, which yards were to the west of and near the depot. Whilst this engine was standing there, with the switchman at the switch stand, the deceased came up and passed along the south side of the engine, and passing in front or to the west of the tender went on across the tracks north. As he did so the switchman called to him to look out for the engine. The train crew claimed to have seen him no more. There were two eyewitnesses to the accident; that is, there were but two who saw the engine strike deceased. Their exact testimony becomes important.

Mrs. Phœbe Jane Miller, who lived in one of the houses to the north of the railroad tracks, and who observed deceased as he passed by the tender of the engine, and also observed the brakeman setting the switch, said: "Q. When he walked across the track and gave this signal, where was Mr. Turner? A. He was coming across here. Q. He was coming across? A. He was coming across to get on the north side of the railroad, just as fast as he could walk. Q. And they passed one another pretty close together? A. Yes, sir; the man that turned the switch went behind Mr. Turner, and he just come on and got across. Q. Did you see Mr. Turner before he started across the track? A. No; he walked down, was going towards town, and seen the train was going to start out pretty soon, and he come across over here on the north side. Q. You did not answer my question, you did not understand me; I want to get the point that Mr. Turner was when you first saw him? A. He was right over, opposite of the engine, coming on, as I tell you. Q. He come right by that engine? A. Yes, sir; when it was standing still. Q. And he come up there, and he and the brakeman met one another about the time the engineer or the brakeman gave the signal to the engineer? A. Yes, sir. Q. Mr. Turner was across the track? A. Yes, sir. Q. Got clear across? A. Yes, sir. Q. Walking along the side of the track? A. Yes, sir. Q. West of this switch post? A. Five or six steps. Q. And at that point the engine was moving back, the tender? A. Yes, sir. Q. And what part now struck him? A. I did not see anything strike him at all, only it just looked like he was kind of daunted or something, and started to fall, and this big wheel catched him, as I say, right across his bowels, turned him heels over head, till it dragged him over and throwed him down, and killed him. Q. You know this drive rod between the big wheels? A. Yes, sir. Q. Was it that that seemed to get hold of him? A. It was the one right in the middle of the big wheel. Q. His body was on the outside of the big wheel while it was turning over? A. Yes, sir. Q. And the tender had passed clear by him? A. Yes, sir. Q. At the time you saw this wheel catch hold of him? A. Yes, sir; the tender had passed him. Q. The tender had passed clear by him? A. Yes, sir. Q. Did you notice how many of those big wheels there was on the engine? A. I don't hardly recollect. Q. Was there two or three? A. I don't recollect; I believe two. Q. Was it the one next to the tender or the one back of that that had a hold of him? A. The one that was next to the tender. Q. You said something about his having a bottle on his arm? A. Yes, sir. Q. Which arm was that bottle on? A. He had it in this hand. Q. In his left hand? A. Yes, sir. Q. And he was going west? A. And I think he had the rope round his wrist. Q. You think the rope was round his wrist? A. Yes, sir. Q. Don't you think that drive rod or that wheel caught that bottle, as he was walking along and that is what turned him round? A. Yes, sir; I think that is kind of what daunted him, and catched him. Q. You think that also caught that bottle and rope round his hand? A. Yes, sir. Q. And wound him up in it? A. Yes, sir; wound him up and took him right on. Q. That is your idea of how the accident happened? A. Yes, sir."

Powell Royston, another witness, among other things said: "Q. Mr. Royston, this accident, resulting in the death of Mr. Turner, state what you know and saw of that? A. Well, on the 17th of August last, about three o'clock it was, I believe I seen Mr. Turner coming down the railroad track from the east. First saw him close to the car house, where the sectionmen put their tools and the like. At this time there was a train in on the main track, and Mr. Turner was coming down west, and the engine had got loose from the...

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