Maginnis v. Missouri Pacific Railway Company
| Decision Date | 06 April 1915 |
| Parties | MARY W. MAGINNIS, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted March 1, 1915.
Motion for Rehearing Overruled May 18, 1915.
Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.
AFFIRMED AND REMANDED. CAUSE CERTIFIED TO SUPREME COURT.
Action affirmed and cause remanded. Case certified to Supreme Court.
Glendy B. Arnold for appellant.
(1) The demurrer to the evidence was properly overruled. The case was one for the jury. Maginnis v. Railroad, 165 S.W 849. (2) The facts and the law of this case are res adjudicata.
James F. Green for respondent.
(1) A clear case of contributory negligence on part of Maginnis was disclosed by the evidence. There was no showing of facts justifying the application of the humanitarian doctrine. Keele v. Railroad, 258 Mo. 62; Burge v Railroad, 244 Mo. 76; Dyrcz v. Railroad, 238 Mo. 33; Bennett v. Railroad, 242 Mo. 125; McGee v. Railroad, 214 Mo. 543; Laun v. Railroad, 216 Mo. 563; Stottler v. Railroad, 214 Mo. 619; Holland v. Railroad, 210 Mo. 351; King v Railroad, 211 Mo. 13; Sanguinette v. Railroad, 196 Mo. 466; Green v. Railroad, 192 Mo. 131; Markowik v. Railroad, 196 Mo. 550; Ries v. Transit Co., 179 Mo. 1; Farris v. Railroad, 167 Mo.App. 392; Newton v. Railroad, 152 Mo.App. 167; Burnett v. Railroad, 172 Mo.App. 51; Gumm v. Railroad, 141 Mo.App. 313; Dey v. Railroad, 140 Mo.App. 461; Kelsay v. Railroad, 129 Mo. 365; White v. Railroad, 159 Mo.App. 508; Vonbach v. Railroad, 171 Mo. 338; Guyer v. Railroad, 174 Mo. 344.
This is the second appearance of this case before us on appeal from the action of the trial court in sustaining a motion for new trial and setting aside the verdict which had been rendered by the jury, in each case a verdict for $ 2000 in favor of plaintiff. On the former appeal we held that the action of the trial court in granting a new trial should be affirmed, but we remanded the cause for further proceedings on the ground that if a recovery is to be had at all "it must be sustained only on the last chance doctrine, for the fault of the engineer in omitting to exercise ordinary care toward averting the injury after he either saw or might have seen the decedent about to become in peril--that is, coming toward the track in such a manner as to suggest the danger of a collision and to call for precautionary measures on his part." [Maginnis v. Missouri Pacific Ry. Co., 182 Mo.App. 694, l. c. 718, 165 S.W. 849.] The issues in this last are as in the former trial and the evidence in this last trial while it followed very closely that in the former, did so with some marked differences which we will notice.
The two witnesses as to the main facts connected with the movements of the decedent at the time of the accident, who testified at the former trial, again testified at this second trial, namely, Mr. Evers, the proprietor of the store referred to in the opinion, which was located on the west side of the Berry road and to the south of the railroad crossing, and the engineer of the train, Mr. Hayes, the latter the only eyewitness to the accident, who at this last trial was called and put upon the stand by plaintiff.
There was some evidence for the defendant, introduced at this second trial, after it had interposed a demurrer to the evidence, which does not appear to have been introduced at the former trial. It was given by a gentleman who was a passenger on the train. This witness on this second trial testified that on the morning of the accident he was sitting in the smoking car when he heard the whistle blowing, first, apparently, the ordinary crossing whistle, then in a little while short and quick and many blasts. He put his head out of the window, thinking that the train was about to run over something and saw a man going, as it appeared to him, at a right angle, to cross the track ahead of the train. It seemed to him that the man was quite a little bit in front of the engine but the witness could not tell whether he was in danger or not and it looked to him like he was trying to cross at right angles and was either running or walking very fast. There were something like four cars between the witness and the engine, and the witness was looking alongside the train as it ran, and the man disappeared from his view, whereupon the witness ran across to the other side of the car to see if the man had got away. When he got there he saw nothing of the man. The train stopped, backed to the station and he got off and helped put the man whom he found lying there, on a stretcher.
On cross-examination this witness testified that the quick, short whistle he heard was what he considered, not being a railroad man or an expert, an alarm whistle, of such a character as to indicate to him that there was something on the track. That was what attracted his attention and caused him to look out; could not tell where the train was when he first heard the whistle; had heard the whistle before he looked out; may have heard it eighty rods before he got to the crossing, but as he was a stranger, not acquainted with the locality, did not know that the alarm whistle, as he called it, was what caused him to look out, the whistle preceding that not having attracted his attention, as we understand his testimony. This testimony supports the conclusion reached by our court that there was nothing lacking in the way of signals or of actionable negligence on the part of the engineer, in so far as that feature of the case is concerned, and in a way supports the testimony of the engineer.
Referring to the testimony of the witness Evers, proprietor of the store, as set out very fully in the former opinion, it is to be noted that he testified that he had traced the course of the decedent by footprints, identifying these footprints as those of the decedent by cracks in the soles of his shoes. That is, he found cracks in the footprints corresponding to those in the shoes. So he testified at this last trial, testifying that after the train had left, he, with several others, went out and followed these footprints. It had been raining the night before or early that morning and the crossing was muddy. The mud from the road had got upon the crossing. There were four planks to each track, that is two planks on each side of the track, at this crossing. Evers and the others followed these footprints "on those planks to the last plank on the--this is, the last inside plank on this crossing." These planks were about sixteen feet long--two to the south, two to the north of the rails, said this witness. In this he is in error, for there were also two between the rails. This last plank was near the north rail. They saw three or more of these tracks, that is, six footprints in all, three pairs of them, as we understand, showing the imprint of the broken sole of the shoe. The beginning of these tracks, he testified, was "right at the driveway or where the teams had carried the mud along the cinders." Asked at what end of the crossing, he answered, Asked to describe this more fully, he did it with photographs before him, by pointing to them on the photographs. But it is impossible for us to locate the tracks by this, as the point is not marked on any of the photographs produced before us. This witness stated, pointing to the photograph: witness indicating the north rail near the end of the plank, and as he repeated near the end of the plank. This footprint was on the last plank. It is clear that when this witness speaks of the "plank walk," except when he refers to one north of the tracks, that he is referring to the boards at the crossing of the dirt road over the tracks.
On cross-examination, this witness testified that he saw about three prints of each foot. Asked if at the time when he looked out there in the mud for these tracks, he had looked anywhere else for tracks except alongside the rail and between the rails, the witness answered: repeating that they could not follow him on all of the plank walk, only where the cinders had mud on them. This examination was made after the train had proceeded to St. Louis and after several people had crossed back and forth over the boards and crossing. No comparison of the footprints with the shoes of decedent was made other than that Evers testified that he saw that the soles of the shoes had a crack in them and that he found a crack in these tracks or imprints.
As the testimony of the engineer is not given in full in the opinion formerly rendered, we think it well to set it out at some length. Called and testifying on behalf of plaintiff at this last trial, the engineer, Hayes, stated that he was the engineer in charge of the engine which struck and killed Mr Maginnis on the date named. He had taken charge of the train as engineer at Jefferson City and was running it into St. Louis. At the time of the accident the train was going at about...
To continue reading
Request your trial