Lynch v. Chicago & Alton Railway Co.

• Decision Date: 10 December 1907
• Citation: 106 S.W. 68,208 Mo. 1
• Parties: CATHERINE LYNCH v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

106 S.W. 68

208 Mo. 1

CATHERINE LYNCH v. CHICAGO & ALTON RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

December 10, 1907

Appeal from Pike Circuit Court. -- Hon. D. H. Eby, Judge.

Affirmed.

W. O Gray and Scarritt, Scarritt & Jones for appellant.

(1) The demurrer to plaintiff's evidence should have been sustained. If plaintiff has failed to prove by substantial evidence any one or more of the necessary allegations of her petition, she has failed to make a case. In a case of this kind a verdict and judgment may not stand upon mere conjecture or guess. Moore v. Railroad, 28 Mo.App 622; Petty v. Railroad, 179 Mo. 666; Warner v Railroad, 178 Mo. 125; McGrath v. Railroad, 197 Mo. 97; Jolly v. Railroad, 93 Mich. 370; Yarnall v. Railroad, 113 Mo. 580; Railroad v. Cathy, 70 Miss. 332; Short v. Railroad, 69 Miss. 848; Ogelsby v. Railroad, 177 Mo. 272; Wintuska's Admr. v. Railroad, 20 S.W. 819; Corcoran v. Railroad, 133 Mass. 507; Rogers v. Railroad, 88 F. 462; The Columbia, 106 F. 745; Railroad v. O'Brien, 132 F. 593; Railroad v. Shertle, 97 Pa. St. 450. (2) The court erred in overruling the motion to strike out the amendment to plaintiff's petition. Sec. 824, R. S. 1899; State ex rel. v. Smith, 176 Mo. 90; Lacy v. Barrett, 75 Mo. 469; State to use v. Rayburn, 31 Mo.App. 396; State ex rel. v. St. Louis, 67 Mo. 113. (3) The court erred in permitting witness Emil Smith to testify as to the speed of the engine in question when it passed this witness a mile and a quarter west of the place where the body of John Lynch was found. The witness did not show any qualification whatever to express an opinion about the speed of this train. Petty v. Railroad, 179 Mo. 666; Muth v. Railroad, 87 Mo.App. 434; Helm v. Railroad, 185 Mo. 122; Campbell v. Railroad, 175 Mo. 161. The speed of the train at that point, when the engine had but shortly left the station at Higginsville and was at the time proceeding through a heavy cut and around a sharp curve, had no tendency whatever to prove the speed of this engine at the point where it is claimed the engine struck John Lynch, at which point the engine was running on a straight track down a heavy grade. Possibly this testimony was offered on the doctrine sometimes enunciated, that what is shown to exist at one time is presumed to continue to exist until the contrary is shown. The doctrine is by no means one of universal application, but is confined to cases of sanity, possession, insolvency, and the like, where the natural order of things is a continuation of the conditions shown at some certain time to be in existence. Johnson v. Johnson, 170 Mo. 56. (4) The court grievously erred in permitting witness N. Jacks to answer the hypothetical questions propounded to him by counsel for plaintiff with reference to the distance within which an engine and tender could be stopped. This witness was not shown to be qualified to testify as an expert on this matter. He had never operated an engine or worked on an engine or railroad train in any capacity whatever. Gourley v. Railroad, 35 Mo.App. 92. (5) Plaintiff wholly failed to prove her right to maintain this action because she did not prove, if it was a fact, that deceased left no minor children surviving him. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; O'Malley v. Railroad, 113 Mo. 319.

P. H. Cullen, Tapley & Fitzgerald and Thad C. Cox for respondent.

(1) The proof showed that the death of Lynch was caused by the carelessness and negligence of the servants in charge of the train, and therefore plaintiff was entitled to recover. Schlereth v. Railroad, 115 Mo. 87; Payne v. Railroad, 105 Mo.App. 155; Sullivan v. Railroad, 97 Mo. 113; Kelley v. Railroad, 95 Mo. 278; Eppstein v. Railroad, 197 Mo. 720; Railroad v. Jacobson, 28 Tex. Civ. App. 150; Hawley v. Railroad, 71 Iowa 717; Railroad v. Simpson, 86 S.W. 1034; Slette v. Railroad, 55 N.W. 137; Railroad v. Erb (Ind.), 73 N.E. 939; Howard v. Canal Co., 40 F. 195. (2) The evidence did not show that deceased was guilty of contributory negligence as a matter of law, and the instruction assuming that he was guilty of negligence was too favorable to defendant. Slette v. Railroad, 55 N.W. 137; Railroad v. Seibert, 55 S.W. 892; Walker v. Shelton, 59 Kan. 774; Hawley v. Railroad, 71 Iowa 717; Railroad v. Simpson, 86 S.W. 1034; Woodard Iron Co. v. Herndon, 114 Ala. 191, 130 Ala. 364. (3) That negligence may be inferred from circumstances there is no doubt in reason or upon authority, and likewise the due care of the person injured or killed may be proven by circumstances. 3 Ency. Ev., p. 103; 6 Thomp. Neg. (2 Ed.), secs. 7863 and 7912; Black v. Telephone Co., 26 Utah 451; Rine v. Railroad, 100 Mo. 228; Harned v. Railroad, 51 Mo.App. 482; Haynes v. Railroad, 54 Mo.App. 585; Rosenfield v. Arrol, 44 Minn. 393; Railroad v. Gunderson, 51 N.E. 708; Kearney Canal Co. v. Akeyson, 63 N.W. 921; Lighthouse v. Railroad, 54 N.W. 321; Union Stock Yards v. Conover, 41 Neb. 677.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

This action was instituted by the plaintiff Mrs. Lynch, to recover damages under section 2864, Revised Statutes 1899, for the death of her son John Lynch, which occurred on August 31, 1902. Prior to and at the time of his death John Lynch was in the employ of the defendant company as a "signal man"; that is, it was his duty to inspect and keep in proper order the automatic electric block signals and bells along a certain section of defendant's line in Lafayette county, from Higginsville to Alma.

The petition alleges that the said John Lynch was killed by the defendant on or about August 31, 1902, at the place and under the circumstances herein stated.

Plaintiff states that her son John Lynch was in the employ of the defendant railroad company, and that it was his duty to run a velocipede car over the defendant railroad company's track between the stations of Higginsville and Alma; that on or about the 31st day of August, 1902, her said son in the discharge of his duties as aforesaid was operating his velocipede car on said tracks and was running the same east from Higginsville to Alma; that while he was so upon said track operating said velocipede car, an engine owned, operated and controlled by the defendant railway company, its agents and servants, was carelessly and negligently run east over and along said tracks; that the agents and servants of the railway company knew that deceased was upon the track as aforesaid, and could have known it by the exercise of ordinary care, and carelessly and negligently failed to give any signals of the approach of said engine and carelessly and negligently failed to stop said engine, but on the contrary carelessly and negligently ran the same with great force and speed into, against and upon the plaintiff's said son and his car. Plaintiff says that the said defendant knew that her said son was upon the track and knew he was in a position of peril and unaware thereof, for a long time before said engine collided with him and the said velocipede; that after said servants discovered the situation they could have stopped the engine and avoided striking and killing plaintiff's son, but negligently and carelessly failed to do so. There were other charges of negligence in the petition, but the cause was submitted upon the above allegation of negligence. There was a prayer for judgment for five thousand dollars damages and costs.

The answer denied each and every allegation in the amended petition. There was also a plea of contributory negligence and an assumption of risks. There was also a plea to the jurisdiction of the court over the subject-matter of the case.

The reply was a general denial of the new matter set up in the answer.

On the trial the plaintiff introduced in evidence the original answer of the defendant, which among other things contained the following allegation: "That the said John Lynch was in the employ of the defendant and that it was his duty to run a velocipede car over defendant's track at and between the stations of Higginsville and Alma and other places on the line of defendant's road. . . . That said John Lynch was riding along the track of the defendant upon his track bicycle and failed to keep a proper lookout for trains that were constantly run upon said track and upon the approach of one of said trains, failed to remove from said track and otherwise negligently and carelessly conducted himself in the premises."

The testimony on the part of the plaintiff tended to prove that John Lynch, the deceased, was the son of Catherine Lynch, the plaintiff herein, at the time of his death; that the plaintiff is a widow and that at the time of his death John Lynch was about twenty years of age, single and unmarried. The evidence also established that Higginsville and Corder are stations on the defendant's line in Lafayette county Missouri, and that Corder is about five miles east of Higginsville. The usual time consumed by passenger trains from Higginsville to Corder is nine or ten minutes. The defendant company has in use upon its railroad what is known as the automatic block system. There was a block just east of Higginsville for east-bound trains between Higginsville and Corder and another one just west of Corder to cover the track between Corder and Higginsville, and at either end of this block is an electric signal. There is also a semaphore at Higginsville and one at Corder. It is in evidence that when an arm of a semaphore was down it indicated that a train could proceed with safety, but when it was extended it indicated danger. It was explained by the witness that after the east-bound train passes Corder, if there was no train on the block between Higginsville and Corder, the arms of the...