McDaniel v. Hines

Citation292 Mo. 401,239 S.W. 471
Decision Date14 March 1922
Docket NumberNo. 22507.,22507.
PartiesMcDANIEL et al. v. HINES, Director General of Railroads.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Newton County; Chas. L. Henson, Judge.

Action by A. J. McDaniel and another against Walker D. Hines, Director General of Railroads. From a ruling sustaining plaintiffs' motion for new trial after defendant's demurrer to the evidence had been sustained, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Mann & Mann, of Springfield, for appellant.

Kelsey Norman, of Joplin, and Horace Ruark, of Neosho, for respondents.

SMALL, C. I.

Appeal from the circuit court of Newton county. In this case the plaintiffs' daughter, Nellie, was killed on August 24, 1918, by being struck at a railroad crossing about 200 feet west of Belfast, a railroad flag station in said Newton county, by the pilot of an engine of a freight train of the St. Louis & San Francisco Railway Company. The freight train was following close behind a passenger train. Both trains were going west on the main line. There was a switch track close to and south of the main track on the crossing and running. some distance east. The child was going, north when struck by the freight train. There was a berry shed about 60 feet long, located about 160 to 200 feet east of the crossing and 4 or 5 feet south of the switch track. There were piles of walnut logs extending from near the berry shed to within about 20 feet of the crossing on the south of and' within about 4 or 5 feet of the switch track. The switch track commenced to run in towards the main line at the crossing so that the north rail of the switch track was within about 18 inches of the south rail of the main line on the crossing at the point where the accident happened. The plaintiffs' child had been sent for a can of coal oil and was going home walking north with the can in her hand when she was struck by the freight engine. The railroad was then in control and being operated by the Director General of Railroads.

The court sustained a demurrer to plaintiffs' evidence, but sustained plaintiffs' motion for new trial. Defendant then appealed to this court from such ruling.

The petition, among other things, alleges that defendant kept the crossing where the child was killed in a dangerous condition, in that there was a space of 3 inches left between the boards in which the child's foot was caught, and that said freight train was negligently run at 40 miles an hour in close proximity, less than 200 feet, behind the passenger train, in violation of defendant's rules; that defendant's servants failed to ring the bell upon the locomotive SC yards from the crossing, and keep it ringing until it passed the crossing, and failed to sound the steam whistle on said locomotive 80 rods before it reached the crossing and at intervals thereafter until it passed the crossing; that, by reason of defendant's negligence, plaintiffs' daughter, infant 14 years of age, was struck and killed by the locomotive. The prayer was:

"That by the aforesaid negligent and careless acts of defendant, the plaintiffs have lost the labor, support, custody and comfort of the said minor daughter and have been damaged in the sum of 810,000, for which they pray judgment."

The answer was a general denial and contributory negligence on the part of plaintiffs' said child.

Plaintiff Lucy McDaniel testified:

The railroad track ran east and west; the public road ran north and south. She and her husband and children lived in a tent on the west side of the public road, a short distance north of the railroad track crossing. Nellie Lee was their oldest child. She was killed at the crossing near Belfast Station, August 24, 1918. There was no depot at Belfast, just a berry shed. Nellie was in the sixth or seventh grade at her last term at school, "but didn't make it complete," and was not promoted; she had lived in the country most of her life; she had been around railroads very little; had lived there in the tent about a month before her death. The railroad track was in a valley; quite a hill on the south which extended east for a ways; the main line comes around a curve; Nellie had been home all day, staying with the little ones, while witness had been to Neosho. Just before she was struck, Nellie had been up to Mr. Meadows to get some oil. She had to cross the railroad going and returning. When Nellie went to Meadows, she waved at a couple of ladies waiting on the railroad platform to take the passenger train for Racine, and, as she was coming back from Meadows, the passenger train stopped, just long enough to take these ladies on and permit four passengers to get off, two young men and two young ladies. They (the girls) went to school with her daughter most of her life. These four young people dropped behind the passenger train and went down (west) behind it. As the passenger train "came by our tent the four were following just as fast as possible right behind it." I was sitting there holding the baby. The tent was out in the open. I had just got home from town, had a sack of cookies, and was giving the children some cookies. As I looked up and saw the passenger train and saw these four young people right behind it, I seen my daughter coming, and she was close to the track, and I was facing the way she was coming. I didn't dream of any danger, because I didn't see any other train or hear any signals at all, and this passenger train had just passed, and I raised my eyes up and saw her as I would see you.

At the corner post of the right of way, the ground dips down, and in rainy weather there is always a mud hole in the public road, and it rained heavy that day and got us wet. As I looked and saw tie young folks passing and saw my daughter coming, she got to this corner post of the right of way, and she either had to go to the west of the public road or to the east of it to get around this puddle of mud in the main public road. It was customary to go to the east, and she didn't get out of the public road, but she circled to the east side to get out of the mud hole, and, of course, she went down in this dip. That was the last I saw of he: until after the train struck her. She was going down to circle around this dip and then had to come up to this switch track. That was a grade up to the switch track; that draw was so much lower than the rails; the main public road dipped down quite a bit into the little draw. Just as I saw her going down in the draw, I heard my husband holler, and I thought he saw her in danger; but when I was sitting there I didn't realize there was any danger, and I just glanced around in front of the children, and he started to holler, and throwed my eyes up, and that was the first I saw of the danger. The first thing I saw was right at the crossing, saw my child hanging over the engine; seems like her head and arms were hanging on the cowcatcher like that (illustrating). Well, it seems she was hanging maybe on the wooden beam; of course, I don't understand about an engine. This passenger train went west, and this train that struck my daughter went west. There wasn't a thing to keep me from seeing that train when I looked up at my child. I ought to have seen it where I was sitting. The roar of the passenger train may have obstructed my hearing it. The noise and roar of the passenger train wasn't out of hearing at all when my child was struck; what noise the freight train made I laid it to the other train. There was no signal at all. I was always careful to watch the children, knowing they didn't know much about a train, and if there had been any signal I would have been more apt to notice it than any one on earth, for I had the children at heart all the time. The freight train run faster than any I ever did see. There were two engines on the train. It was downgrade going west. The train didn't seem to make any noise or fuss whatever, just glided by. We found the body between 90 and 95 feet on the south side of the track. I seen her fall. I seen her all the time she was on the engine until she fell. When I got there she was lying on her back with her broken arm lying out like that. There was quite a crew of men working there at the crossing on the track all day Friday. It looked as though they had the main line out for a while.

The next morning after my daughter was killed, Mrs. Neece, my husband, and Mr. Redding, and I went down to the crossing and to the mud hole where I last saw her, and we couldn't see any train from there at all for those logs and the berry shed; they were high enough to cut off the view. The logs were piled up something like seven feet high. They began real close to the berry shed and were piled in tiers lengthwise with the track. The closest logs were not over 25 feet from the public road. Coming up this slope to the switch track, I would have to get past the logs before I could see anything at all. I would then be not more than four feet from the switch track. When we were examining the crossing, the board next to the switch was raised and splintered, and Mrs. Neece set her foot in like that and the foot couldn't draw back; she had on shoes with big heels. Nellie was something over four feet tall. She came just about to my shoulder. When she was in her coffin her ankle seemed a little out of shape; it lay crooked for some cause. At the time she was killed she had on coarse shoes. There was a mark on the heel of her shoe after it was taken off that was not there when she started to Mr. Meadows, and also this mark on the instep was not there. She just seemed like she was my whole help; she was a regular mother to the other children, and when I would go away I could depend on her to care for the youngest. She would have been 15 December 13, 1918. She was as bright as the common run, of course. I think any one would know the danger of going there. When within about four feet of the passing track could see a...

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