March v. Pitcairn
| Citation | 125 S.W.2d 972 |
| Decision Date | 30 January 1939 |
| Docket Number | No. 19305.,19305. |
| Parties | MARCH v. PITCAIRN et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Callaway County; W. M. Dinwiddle, Judge.
"Not to be published in State Reports."
Action by May March against Norman B. Pitcairn and Frank C. Nicodemus, Jr., receivers of the Wabash Railway Company, and another, to recover the statutory penalty for the alleged wrongful death of plaintiff's husband who was killed by a train. From a judgment for plaintiff, defendants appeal.
Reversed and remanded.
Homer Hall, of St. Louis, Clark, Boggs, Peterson & Becker, of Columbia, and Baker & Baker, of Fulton, for appellants.
Edwin C. Orr and Cave & Hulen, all of Columbia, for respondent.
CAMPBELL, Commissioner.
Plaintiff brought this suit to recover the statutory penalty for the alleged wrongful death of her husband James March. She recovered a judgment in the sum of $3,500, from which the defendants have appealed.
Plaintiff's husband, a deaf-mute, was struck and killed by a Wabash passenger train consisting of an engine and two passenger coaches in the city of Columbia, Missouri, about 10:40 a. m., August 21, 1937. The place of the fatal accident was a few feet north of the north line of Rogers street, an east and west street, in said city, at which place there was a main or center track and a switch track on the east and on the west; the east rail of the west switch track was 8 feet, 4 inches west of the west rail of the main track. The train in question was going north on the main track at a speed of 12 to 15 miles an hour.
The cause was tried and submitted on the humanitarian doctrine.
The defendants argue no case was made for the jury and for that reason the court erred in refusing their separate requests for directed verdicts. This insistence is founded upon the claim that the evidence was insufficient to bring the case within the humanitarian rule, and that plaintiff failed to show that the defendant receivers were in charge of the railroad at the time March was killed.
Sallie Carter testified for the plaintiff that she was sitting on the porch (271 feet south of the place of collision) of her home, saw March going east "walking slowly", had a cane, "was tottering, like some little child learning to walk"; that she continued to watch him from the time he went on the west switch track until he stepped upon the main track; that at the time he stepped upon the main track the train was "along by Scurlock's." She also testified that at the time March stepped upon the main track the train was about in front of her house; that the train severed the body of March and proceeded on its way without stopping; that she went to the scene of the collision, found the lower part of the body on the east side of the track, the upper part between the rails of the main track.
In cross-examination she said the body was on the west side of the main track, between the main track and the east rail of the switch track.
It was shown by other testimony that "Scurlocks" was 330½ feet south of the north line of Rogers street.
R. H. Miller, for the plaintiff, testified he saw March going east on the sidewalk on the south side of Rogers street; that March when about 20 feet west of the west switch track, turned to the northeast and walked to the main track; that March appeared to be feeble, had his head down, "never did raise his head"; that when March was "stepping upon the west rail of the main track the train was back at the switch light", a distance of about 160 to 170 feet. There was other evidence to the effect there were two switch lights, one 161, the other 178½ feet south of the north line of Rogers street. Miller further testified he continued to watch March until the latter stepped on the rail of the main track; that he then turned his head because he "didn't want to see him get killed."
Plaintiff's witness, Allen, testified that when he was near the west switch track and the north line of Rogers street March passed him, proceeded to and across the main track, "got clear of it (main track) and turned around and he kind of went back and the train caught him." Later, in giving his testimony, the witness said March was "an inch or two, or maybe three" east of the east rail of the main track when he turned back.
The defendant Kiser, the engineer in charge of the engine, was plaintiff's witness. He testified that he was on the seat box on the right side of the engine, looking along the track as the train approached Rogers street; that he did not see March nor was he aware the accident had occurred until he returned to Columbia later in the day.
Plaintiff's witness, the fireman, testified that he was on the deck of the engine "putting in a fire" as the engine approached Rogers street; that about the time the engine came to the street crossing he went to his seat, and that he did not see March.
There was expert testimony to the effect the train could have been stopped in safety within a distance of 15 to 25 feet. There was evidence the whistle was sounded at intervals and the bell was ringing as the train approached the crossing.
The evidence was sufficient to show that March as he approached and entered upon the main track was unaware of his peril; that his manner was such as to induce belief in the mind of a reasonable person that he was oblivious of the approach of the train.
The defendants contend there was no evidence showing that the engineer saw or could have seen March in time thereafter by the exercise of ordinary care to have prevented the injury.
The evidence of the engineer to the effect he was looking along the track and did not see March was conclusive on plaintiff unless it was contradicted. Costello v. Pitcairn, et al., Mo.App., 116 S.W. 2d 257.
The jury could believe the engineer told the truth when he said he was looking, and disbelieve him when he said he did not see March, provided there was evidence showing March was within his vision. Gould v. Chicago, B. & Q. R. Co., 315 Mo. 713, 290 S.W. 135.
It is a matter of common knowledge, and we therefore take judicial notice of it, that the engineer's cab was at the rear of the boiler and obstructed the view to the left; that the distance ahead of the engine in which the view of the engineer was obstructed depended on the length of the boiler and the distance from the east side of the boiler to the window in the cab.
There was no evidence showing the length of the...
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