Newell v. Dickinson

• Decision Date: 29 June 1921
• Docket Number: No. 16141.,16141.
• Citation: 207 Mo. App. 369,233 S.W. 72
• Parties: NEWELL v. DICKINSON et al.
• Court: Missouri Court of Appeals

233 S.W. 72

207 Mo. App. 369

NEWELL v. DICKINSON et al.

No. 16141.

St. Louis Court of Appeals. Missouri.

June 29, 1921.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Ella Ramband Newell against Jacob M. Dickinson, receiver of the Chicago, Rock island & Pacific Railway Company, and others. Judgment for plaintiff, and defendants appeal. Reversed.

A. E. L. Gardner, of Clayton, for appellants.

Peyton H. Smith and Robert M. Zeppenfeld, both of St. Louis, for respondent.

BRUERE, C.

Plaintiff brings this action to recover damages for the death of her husband, alleged to have been negligently killed by a locomotive operated by the defendant, the Chicago, Rock island & Pacific Railway Company. Plaintiff had judgment below for $2,000, and defendants have appealed.

The petition alleges, inter alia, that ceased was struck and killed by said locomotive while walking eastwardly on the railway track; that there was a habitual user for many years of the track by the public, at the place of the accident, with the forbearance and consent of said railway company; and counts for recovery upon the application of the humanitarian or last clear chance rule.

The answer is a general denial, coupled with a plea of contributory negligence and a plea that the deceased, at the time he received the alleged injuries, was a trespasser upon the tracks of the defendant railway company, and was not seen at the time by the person or persons in charge of the said on-coming locomotive.

At the close of plaintiff's case the defendants requested the court to give to the jury a peremptory instruction to find for the defendants, which the court refused to give. The defendants offered no testimony. Appellants' assignment of error is that the lower court erred in refusing to give the peremptory instruction.

The facts brought out at the trial, necessary to an understanding of the point raised, are as follows: The accident occurred on the 2d day of September, 1016, in the morning at about 6:41 o'clock. The deceased on said day lived with his wife near Vigus, a station in St. Louis county, Mo., on the railroad line of the defendant railway company. Ms house was situated about 100 feet south of the main track of said railway company, and about 710 feet east of Vigus Station and 713 feet west of the point of the accident. The point where deceased is presumed to have been ' struck is 1423 feet east of Vigus Station, and 262 feet east of the east end of the railroad bridge or trestle across Fee Fee creek. Said point is marked "rail joint" on the plat introduced in evidence. East of said trestle the railway company maintains two tracks, the main track and the so-called north quarry track. The north quarry track is north of the main track, and runs parallel therewith up to a point about 262 feet east of the said trestle; it then leaves the main track and turns to the northwest. The north quarry track runs into the main track about 400 feet east of the trestle. The tracks run east and west. The space north of the main track and east of the trestle, between the main track and the north quarry track, is level for a distance of about 400 feet east of the trestle; said space is used for unloading and piling up railroad ties. There was no evidence that railroad ties were piled on said space at the time of the accident. South of the main track there is a slope or embankment. We would gather from the facts that the height of the slope or embankment is 3 feet; there being testimony that the right of way ditch, in which the deceased was found, was 3 feet below the level of the tracks. The track, adjacent to Vigus Station, is graded level 100 feet in width, and runs that width east to the north quarry switch east of the trestle. North of and about opposite the point where deceased is presumed to have been struck is a telegraph pole. From Vigus Station east to a point 88 feet west of the west end of the railroad bridge there are two tracks, the main track or south track and the siding track. Four hundred and sixty-five feet east of Vigus Station the south quarry switch runs into the main track. Running eastward from Vigus Station the tracks curve to the southeast up to a point about 425 feet east of Vigus Station; from that point eastward the tracks run straight up to and beyond the point where deceased is presumed to have been struck. The railroad bridge across the Fee Fee creek is 63 feet and 9 inches in length. There is a walkway south of the south rail and a walkway north of the north rail across said trestle. A photograph discloses that a railing extends along the north and south sides of the trestle; and that the walkways are constructed of wooden planks, and are sufficiently wide to enable a person to walk on them, across the bridge, without any danger of being struck by a passing train. East of where deceased is presumed to have been struck there is a footpath which runs east and south of and along the ties of the main or south track. From a point about where the north quarry track joins the main track going west to Vigus Station there is a slope or embankment to the track on the south side, and between these points the public for many years habitually used the right of way and the railroad tracks as a footpath.

With the physical facts thus before us the testimony of the witnesses, pertaining to the accident, can be more readily understood. Said testimony is as follows: Between 6:30 and 7 o'clock on the morning of the accident the plaintiff stood in her doorway and saw the deceased leave their home going east. Plaintiff last saw her husband when he was on the trestle across Fee Fee bridge. She testified that there was a fog that morning, but she was able to see plaintiff from where she stood to the trestle, where her husband disappeared, walking east on the trestle. A train passed Vigus Station, going east, about 6 or 7 minutes thereafter. Plaintiff further testified that she did not hear the bell of the locomotive ringing when the train passed her home.

Witness Mrs. Lillie Grace, who resides 53 feet east of the Newell home, also saw deceased leave his home the morning of the accident. She observed deceased opposite his home, walking east on the railroad tracks. She saw him on the trestle, at which point he was lost to view. About 5 minutes thereafter the train in question passed Vigus Station. Witness was unable to tell whether deceased in crossing the trestle used the walkway on the trestle, or whether he used the railroad tracks. The plaintiff and Mrs. Grace are the only witnesses who testified seeing deceased on the morning of the accident before he was killed.

The on-coming train in question gave several blasts of the whistle just west of Vigus Station. It passed said station at 6:41 o'clock, a. m. There was a fog on the morning of the accident at Vigus Station. The witnesses' testimony differed as to the distance a person could be observed through the fog; the longest distance testified to being 700 feet and the shortest 50 feet.

The plaintiff called the defendant A. 3. Stanley, the engineer in charge of the train, as a witness: He testified that he kept the automatic bell of the locomotive continuously ringing from...