Maginnis v. Missouri Pacific Railway Co.

• Decision Date: 07 April 1914
• Citation: 165 S.W. 849,182 Mo.App. 694
• Parties: MARY W. MAGINNIS, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY, Respondent
• Court: Missouri Court of Appeals

165 S.W. 849

182 Mo.App. 694

MARY W. MAGINNIS, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 7, 1914

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

AFFIRMED AND REMANDED.

STATEMENT.--This is a suit under the wrongful death statute for damages accrued to plaintiff, the widow of William T. Maginnis, on account of the alleged negligence of defendant in running upon and killing her husband at a public road crossing. The finding and judgment were for plaintiff, but the court set the verdict aside on defendant's motion, and it is from this order the appeal is prosecuted by plaintiff.

There are several specifications of negligence in the petition, and they will be more particularly adverted to hereafter. However, among the charges so laid against defendant is one to the effect that it breached its duty imposed by the statute in failing to sound the usual alarms on approaching a public road crossing. The evidence is principally directed to this matter, but a question is made, too, with respect to the ability of defendant's locomotive engineer to have saved plaintiff's husband from disaster by exercising a vigilant watch, sounding alarms, and slowing down the train but without stopping it. These several questions will be considered in their turn as they appear by reference to the pleadings and the evidence.

Plaintiff's husband was sixty-nine years old at the time he came to his death, was alert for a man of his years, and possessed all of his faculties to a good degree, including his sight and hearing. He, together with his wife, plaintiff, resided at Glendale, a small station on defendant's railroad in St Louis county, through which Berry road, a public highway seems to be the principal thoroughfare. Plaintiff's husband came to his death about seven o'clock in the morning, Sunday, August 20, 1911, while he was crossing defendant's south, or eastbound, track at Berry road through being run upon by defendant's eastbound passenger train, on its south track, which was proceeding at a rate of speed from forty to forty-five miles per hour.

We copy from the brief of plaintiff's counsel a clear and complete statement of the facts relevant to a general outline of the case as follows:

"Plaintiff and deceased had been married forty-three years. On the morning of the death of her husband, plaintiff left her home at Glendale and had gone to Kirkwood to attend church, and at the time plaintiff left her home for church, the deceased was dressing, but was not ready to go with her, and said that he would come on after a while. Her husband was on his way to join his wife at mass when he was struck and killed by the defendant's train at the Glendale crossing of the Berry road and the defendant's tracks.

"Glendale is a 'right smart' little settlement on the defendant's railroad in St. Louis county, between Kirkwood and Webster Groves. The tracks of the defendant, at the locus in quo, run east and west and cross, at Glendale station, what is known as the Berry road, a much traveled, unmacadamized public highway--a country road,--which runs north and south. The tracks and the road intersect each other at about right angles. The defendant's railroad is double-tracked through Glendale. Eastbound trains use the south, and westbound trains the north, track. These tracks were flanked on the south, about two blocks distant, by the tracks of the Frisco Railroad and on the north, several blocks distant, by the tracks of the United Railways Company. There was a golf club adjacent to defendant's tracks at Glendale station and another golf club in the same vicinity and some distance north of the station. Oakland station was about a half mile west of Glendale and was the next station west of Glendale on the defendant's road. From a short distance, say sixty to eighty feet, west of the Berry road to Oakland station, defendant's tracks were laid on a straight line. About sixty to eighty feet west of the Berry road was the beginning of a heavy curve to the northeast in the defendant's tracks. Adjacent to the defendant's right-of-way and south of the tracks, some twenty or twenty-five feet distant, and abutting the west side of the Berry road, was the country store of John P. Evers.

(The scene of this accident and its immediate vicinity are accurately shown by the photographs introduced by the plaintiff and defendant, and the plat introduced by the defendant, which accompany this record.)

"Just back of Evers' store and close to the defendant's right-of-way was a sign board, twelve feet high and sixty-four feet long, facing the tracks. South of the store and sign board and setting back in the yard was Evers' cottage and some outbuildings. Beginning at a point about twenty-one feet from the south rail of the eastbound track and on the west side of Berry road, and running in front of Evers' store and extending in a southerly direction was a narrow board walk which was used by pedestrians traveling north and south on the Berry road. There was no board walk on the east side of the Berry road south of the defendant's tracks in this vicinity. North of the tracks the board walk was on the east side of the Berry road. On the east side of the Berry road, and built right up close to the eastbound track on the south side thereof, was a small station house of the defendant for the use of its passengers.

"As deceased approached the crossing from the south and was struck and killed while on the south or eastbound track, we shall not bother about the measurements on the north side of the tracks. The defendant offered A. S. Butterworth, one of its civil engineers, as a witness, who fully explains the plat we have referred to and gives the accurate relative locations of the tracks, Evers' store, station house sidewalks and other objects at the crossing of defendant's tracks and the Berry road. The accuracy of the testimony of this witness, together with the plat offered by the defendant, were not disputed by the plaintiff at the trial and doubtless were accepted as true by the jury. The measurements we give here are taken from the testimony of the defendant's witness, Butterworth, except as otherwise expressly stated.

"Berry road, just south of the tracks is about forty feet wide and in front of Evers' store is about thirty-six feet wide. The width of defendant's right-of-way at Berry road is one hundred feet. From the south rail of the eastbound track to the south line of defendant's right-of-way it was thirty-six feet. Evers' store faces east. It was fifty-seven feet, on a direct line, from the northeast corner of the store to the first rail of the eastbound track. From the northeast corner of Evers' store to the northwest corner of the station house, the distance was eighty-five feet. On the ties between and outside the two rails of the eastbound track, the defendant had laid the heavy crossing boards shown in the photographs. The boards were sixteen feet long and were designed to even up the tracks for the use of vehicles. The east ends of the boards were eighteen feet west of the northwest corner of the little station house. In a direct line from the northeast corner of Evers' store, to the east end of these crossing boards it was seventy feet. The plaintiff's evidence shows that deceased was struck while on the east ends of the crossing boards and near or on the north rail of the eastbound track. (Two steps more would have taken the deceased out of danger.) Defendant's engineer says that deceased was either on, or just east of, the east ends of the crossing board when he was struck by the engine,--he is not sure which.

"There was but one eye witness in this case who saw the deceased as he emerged from behind Evers' store and approached the track on the west sidewalk of the Berry road, and that was James E. Hays, defendant's engineer. None of the plaintiff's witnesses saw the deceased immediately before he was struck by the train, but there is other indisputable evidence in the record that deceased came up the west sidewalk of Berry road, entered the westbound track at the west end of the crossing boards and walked on these boards in a northeasterly direction to the east ends of the boards, a distance of about fifteen or sixteen feet, where he was hit, as he was about to step off of the track. He was pursuing the usual course of northbound pedestrians crossing the defendant's tracks. The road was muddy, deceased was on his way to mass, and was evidently making for the plank walk north of the tracks and on the east side of the Berry road.

"The evidence shows that a pedestrian approaching the crossing would not have a fair opportunity to see an approaching train from the west, on defendant's tracks, until he had passed north of Evers' store. There is no doubt about deceased's ability to have seen the train, or the engineer to see the deceased, after the latter passed north of the store.

"John P. Evers, the owner of the store, and formerly station agent of the defendant at Glendale, was a witness for plaintiff. He was in his yard at the time of the collision. His attention was first drawn to the train by the sudden alarm whistling of the engineer. He ran out in front of his store on to the Berry road and saw the train crossing the road, and ran up to the crossing and after the train had passed the crossing, he saw the deceased lying on the westbound or north track, about ninety or a hundred feet from the ends of the crossing boards. It had rained the night before, and the crossing was soft on top and the road muddy. Mr. Evers examined the shoes of deceased after he was struck and found 'breaks' in the soles of them. He also examined the crossing boards and...