Mills v. Missouri Pac. Ry. Co.

• Decision Date: 19 June 1906
• Citation: 94 S.W. 973,199 Mo. 56
• Parties: MILLS v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

94 S.W. 973

199 Mo. 56

MILLS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

1. MASTER AND SERVANT—FELLOW SERVANT'S ACT—CONSTITUTING NEGLIGENCE.

Where a section hand was seen by the operatives of a train in a position of danger on the track, though the locomotive bell was ringing, it being apparent that the bell did not alarm him of his danger, it was negligence not to sound the whistle.

2. TRIAL—INSTRUCTIONS — REQUEST — NECESSITY.

An appellant, who asked no instruction on a certain point, cannot complain of mere nondirection.

3. EVIDENCE—DECLARATIONS—RES GESTÆ.

In an action for the death of a section hand who was struck by a train while working on the track, his question, "What hit me?" on returning to consciousness after he was struck, was admissible as part of the res gestæ.

Appeal from Circuit Court, Henry County; C. A. Denton, Judge.

Action by Cordelia E. Hinzeman, now Mills, against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. T. Railey and Martin L. Clardy, for appellant. O. L. Houts and Charles E. Morrow, for respondent.

LAMM, J.

This is an action to recover $5,000 for the death of plaintiff's husband, Joseph Hinzeman, on the 2d day of October, 1900, he being defendant's section foreman, having in charge a section near Kansas City, and killed while in the line of duty. He and his gang of men were at work reconstructing defendant's roadbed; i. e., removing bad ties and replacing them with sound ones. Hinzeman, it seems, assumed the service of going ahead of his men and marking defective ties with a pick, and was engaged in marking a tie when he was struck and killed by an eastbound locomotive pulling a passenger train and running on schedule time at say 25 miles an hour in daylight on an unobstructed level track and clear day. He had good eyes, good ears, and was a trackman of experience. His widow, Cordelia E. Hinzeman, brought suit, and was cast on trial to a jury.

The cause was here once before on defendant's appeal from an order granting plaintiff a new trial. At that trial the following instruction was given for defendant: "Unless the jury believe from the greater weight of the evidence that the defendant's engineer in charge of the locomotive which struck the deceased, willfully, wantonly, or recklessly ran deceased down and killed him, your verdict must be for the defendant." The trial court, having reconsidered its action in giving that instruction, sustained plaintiff's motion for a new trial, and here, on review, that ruling was approved; the case being reported in full. Hinzeman v. Railroad, 182 Mo. 611, 81 S. W. 1134. The cause was originally tried in the circuit court of Johnson county, but, when sent below, was removed by change of venue to the circuit court of Henry county and retried on January 23, 1905, resulting in a verdict for plaintiff in the sum of $5,000; defendant again appealing. The petition was amended at the second trial to show that plaintiff had intermarried with one Mills. As we see it, the former answer was refiled, and the former testimony, as preserved in the bill of exceptions, was read to the second jury, supplemented by oral testimony tending to impeach the credibility, and disturb the weight due to the testimony, of plaintiff's witness, Wilson. This case, therefore, having been tried the second time on the same paper issues and substantially on the same evidence, supplemented by oral proof tending to break down plaintiff's principal witness, it would do no good to restate the facts, provided we remain satisfied they were fully and fairly stated before. We have accordingly examined the original opinion and the record then and now before us, and as a result readopt the statement of the case there made, in extenso, by Valliant, J. That opinion must, therefore, be read with this.

Some of the evidence tended to show Hinzeman had been marking ties as he went east on the track; the train approaching him from behind. Some of it tended to show he was walking east between two railroad tracks with a pick on his shoulder, and suddenly veered and approached the rail, bent over it, and delivered a blow with his pick upon a tie so immediately before the coming engine that, though seen in peril by the engineer and fireman, it was too late to save his life. All the evidence indicates he was seen by the engineer and fireman for several hundred feet. Defendant's evidence indicates that when so seen he was out of danger, and turned from the course he was holding and placed himself in danger when his injury could not be avoided. Plaintiff's evidence was somewhat the other way. In this condition of things, the former opinion laid some stress upon the pick marks on ties west of where Hinzeman was killed as indicating his presence on the track and in danger for some distance, and it is now...