Newkirk v. Pryor

• Decision Date: 17 January 1916
• Docket Number: No. 11793.,11793.
• Citation: 183 S.W. 682
• Parties: NEWKIRK v. PRYOR.
• Court: Missouri Court of Appeals

183 S.W. 682

NEWKIRK v. PRYOR.

No. 11793.

Kansas City Court of Appeals. Missouri.

January 17, 1916.

On Motion for Rehearing, March 14, 1916.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Suit by Martha Newkirk, administratrix of the estate of Joseph Newkirk, deceased, against Edward B. Pryor, receiver of the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. L. Minnis, of St. Louis, J. M. Davis & Son, of Chillicothe, and Jones & Conkling and G. C. Jones, all of Carrollton, for appellant. W. K. Amick, of St. Joseph, and A. G. Knight, of Trenton, for respondent.

TRIMBLE, J.

Joseph Newkirk, a carpenter, repairing the pumping station of the Wabash Railroad at Keytesville, Mo., at which water was supplied to engines hauling interstate freight and passengers as well as to those carrying intrastate business, was struck and instantly killed by an east-bound interstate passenger train. His widow as administratrix, brought this suit under the Employers' Liability Act to recover damages for his death. She secured a verdict and judgment for $3,800, which the jury apportioned between the widow and deceased's nearly grown and only minor son, giving $3,650 to the former and $150 to the latter. The defendant, as receiver of said road, appealed.

Plaintiff submitted the case upon two specifications of negligence, namely: First, that the engineer saw Newkirk on the track, or so near thereto, as to be in danger, while the latter walked such a distance and for such a space of time that, by the warning whistle, Newkirk would have been informed of the presence and approach of said train in time to have gotten out of the way, and that said engineer, after seeing Newkirk's danger, failed to use reasonable care to sound the whistle and avoid injuring him; second, that the foreman in control of and over Newkirk, with full knowledge that a train was about to pass, ordered Newkirk to go eastward for some timbers necessary in the work, and said Newkirk obeyed said order and walked east upon or so near to the track as to be in danger, and the foreman failed to notify Newkirk that the train was about due, failed to keep a lookout for said train, and failed to notify him of its approach, and knowingly allowed him to walk upon or near said track, in danger from the passing train, without warning him that the same was due.

It is very earnestly urged that plaintiff failed to make a case for the jury, in that no negligence whatever was proved against defendant. A proper determination of this question calls for a detailed description of the surroundings at the place of the tragedy and a statement of how it came about.

About 600 feet west of the depot at Keytesville the Wabash Railway, with double tracks, crosses Mussel Fork creek on a bridge 163 feet long. This bridge has no superstructure above the tracks, so there is nothing to impede the view in looking along the tracks over the bridge. Under the bridge the creek runs from north to south and at right angles to the tracks, but almost immediately after the creek emerges from under the bridge it makes a curve to the southeast and continues thence in that direction. The north track was for west-bound, and the south track was for east-bound, trains. Running east from the east end of the bridge the tracks were on an embankment 8 or 10 feet high. The pumphouse, 40 feet in length, stood 13.3 feet east of the east end of the bridge and 18.8 feet south of the center line of the east-bound track; the site of the pumphouse being located at and upon the foot of the railroad embankment. On the same side, and about 126.3 feet east of the east end of the bridge, or about 113 feet east of the west end of the pumphouse, a water crane stood close to the track. This water crane was an upright hollow iron post, with an arm extending over the track, through which engines on the east-bound track obtained water from the water tank located north of the tracks and about opposite the pumphouse.

Within this 126 feet, between the end of the bridge and the water crane, is where the killing occurred. About 10 feet west of the east end of the pumphouse a pile of coal lay alongside the track, and extended from that point east a distance of 25 or 30 feet. It was a carload of coal thrown off there that day for fuel in running the pump engine. The top of this pile rose about 2 feet higher than the rails, and the coal extended up to the ends of the ties. Further east along the side of the track, and between the east end of the coal pile and the water crane, lay a pile of lumber, consisting of boards and timbers.

Water was being hauled from this station to other points along the railroad, and a long train of tank cars stood on the west-bound track at the tank and extended eastward, being filled with water. A large and very heavy pump had been taken from some station elsewhere on the road and brought to this pumphouse for installation therein, either as a substitute for, or in addition to, the pump already in and in use. The pump to be installed had been deposited on the ground at the top of the embankment, the north side of the pumphouse had been taken out, and the pump was being let slowly down the embankment to the bottom of the pumphouse. In order to prevent the pump from sliding down the embankment too rapidly, and perhaps toppling over into the creek, the foreman had two men — deceased another — standing on the east-bound track, holding the pump with a rope attached to it and extending from the pump up under the rail to the two men, who held it and gradually let it slack, as the pump was slowly eased down to the bottom of the pumphouse.

The foreman was on the end of the bridge. Deceased was on the track about 6 feet east of the end of the bridge. He and the other workman had been standing on the track holding the rope for 30 minutes or an hour. When the pump had been lowered as far down the embankment as desired, it was temporarily held there by the men below, and the holding of the rope by the two men on the track was no longer necessary. Desiring to have some heavy timbers to block the pump in its position, the foreman, pointing down the track to where the lumber lay at the foot of the crane, said to deceased: "Go down the track and get some timbers to block it with." Newkirk, who was standing on the south end of the ties, immediately let go of the rope, and, turning east, started in a moderate gait walking along on the south end of the ties looking down to the ground. Before he reached the lumber, a fast eastbound passenger train overtook and struck him with the pilot beam. His lifeless body was picked up at the foot of the water crane.

The deceased was clearly engaged in interstate commerce at the time he was killed. He was engaged in repairing the pumphouse and pumping station. These were instrumentalities already devoted to and used in interstate commerce, and as he was killed while repairing same he was engaged in interstate commerce. Eng v. Southern Pacific Co. (D. C.) 210 Fed. 92; Deal v. Coal & Coke Ry. Co. (D. C.) 215 Fed. 285; St. Louis, etc., R. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. As this is a case under the federal act, the deceased's contributory negligence in walking along the track as he did, does not bar a recovery, but merely diminishes the damages recoverable. We therefore pass at once to the question whether a case was made for the jury.

After a careful study of the record we are fully convinced that it was a question for the jury to say whether negligence was shown, rendering defendant liable, and that this applies to both of the specifications of negligence upon which the case was submitted. As to the charge of negligence against the engineer in not warning deceased in time to have enabled him to escape, there is this to be said:

A man on the track at any point from the pumphouse to the water crane was in plain view for more than 900 feet to one approaching from the west upon an engine. It was a clear day, and there was nothing to prevent his being seen. The engineer knew there were men working about the pumphouse. He says he was on the lookout and watching; that men had been loading and hauling water from this point and doing other work there for two months; that he was approaching a town which was not a stopping place for his train, but which he could pass if the signal board was not against him. He further says he could see the track plainly. The engineer says the train was going 20 miles per hour, but plaintiff's witnesses say it was going 50 miles an hour. The engineer says the deceased came up the embankment and turned to go east, and did this at a time when the train was so close upon him as to afford no time to give an effective warning, though he whistled the danger signal the moment the deceased appeared on the track. But plaintiff's witnesses say deceased was on the track when ordered to go for the timbers, and that he started from that position. Several witnesses say no...