Paul v. St. Louis-San Francisco Ry. Co.

• Citation: 275 S.W. 575
• Decision Date: 13 August 1925
• Docket Number: No. 3796.,3796.
• Parties: PAUL v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Court of Appeal of Missouri (US)

275 S.W. 575

PAUL v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3796.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Rehearing Denied September 10, 1925.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Acton by Ota Paul against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. P. Evans, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

McKay & Peal, of Caruthersville, for respondent.

COX, P. J.

Action by plaintiff to recover for the death of her husband, Roscoe Paul, whom it is alleged was run over and killed by an engine of defendant. Plaintiff recovered $2,000, and defendant appealed.

[] The chief question to be determined here is whether the court should have sustained a demurrer to the testimony and directed a verdict for defendant. The petition was framed and recovery had under the humanitarian rule. It is familiar law that, in construing a demurrer to the evidence, we must give the plaintiff the benefit of the most favorable inferences that can reasonably be drawn from the evidence. The facts may be briefly stated as follows: Defendant operated a railroad between the stations of Kennett in Dunklin county and Caruthersville in Pemiscot county. On this line are two stations, Kirk and Yama, which are about two miles apart. The land along the railroad between these two stations is swampy, and there is no public dirt road or highway open which persons desiring to go from one of these stations to the other can travel, and hence, for a long term of years, it has been the custom and practice of people to walk between the rails upon the track of the railroad between these two points, and this custom or practice was known to the persons who operated trains for defendant. The track was level and straight, and an object on the track could be seen for a long distance by an engineer in charge of an engine on the track unless his vision were obstructed by weather conditions. About 5:30 in the morning of September 7, 1922, an engine with no cars attached was being run from Hayti to Campbell. There were four men on the engine, the engineer and fireman operating the engine and a conductor and a fireman being conveyed to Campbell. It was a foggy, dark morning, and the rails were wet with dew. At some place between the stations of Yama and Kirk, the engineer and others on the engine saw something on the track some 400 feet ahead, which at the time appeared to them to be a pile of cinders, but when within 300 or 275 feet of the object they saw that it was a man lying lengthwise on the track. The engine passed over the body of the man and beyond some 30 to 40 feet before it stopped. The parties on the engine picked the man up and took him on the engine to Kennet, and he died soon thereafter. He was lying face downward on the track. He had a wound in the back part of the head that left the skull open so that the brain was visible, and it was this wound that caused his death. It was the theory of plaintiff that the deceased was lying face downward on the track, and when the engine passed over him some part of the engine struck him and inflicted the wound in the head from which he died. The deceased had some slight injuries on the face, his pants were torn at the hip, and there were scratches on his leg, hip, and back. On the under side of the engine was what is described as a cotter key which extended below the other parts of the engine about one-half inch, and was about the size of a lead pencil. This cotter key had a piece of cloth on it after the engine passed over the body. The body was lying parallel with the rails of the track, am; the scratches and injuries were in line with the rail.

[] The theory of defendant was that the engine did not strike and kill the man, but that he had been struck on the head by some person, and the wound which caused the death inflicted in that way. To show that the wound was not caused by the engine striking him, it was shown by the parties on the engine that when they got back to the man the blood from the wound had run on the ground a distance of two feet and was partly coagulated. There was testimony that a pool of blood would coagulate to some extent in 5 to 10 minutes, but might require 30 minutes for it to become solid. These same witnesses also testified that the blood had practically stopped flowing when they reached the body. One witness testified that after the engine stopped, the engineer backed up to where the body was lying. The engineer himself testified that when he stopped they all got off the engine and trotted back to where the man was lying. In any event some time would elapse from the time the engine passed over the body of the man until these parties got back to it and observed the condition of the blood. We are of the opinion that the question of whether or not the engine struck and killed the deceased was for the jury, and the demurrer to the evidence should not be sustained on the ground that it was not shown that the engine struck and killed him.

The other ground upon which it is contended the demurrer to the testimony should have been sustained is that the evidence does not show that the engineer was negligent in not stopping the engine after he discovered the man lying on the track and before the engine reached him. As bearing on that question the evidence may be summarized as follows: The engineer who was in charge of the engine testified that he had only the engine; there were no cars attached. Be had air brakes on the engine. (Another witness testified he had sand also.) The rails were wet with dew, and it was a misty, foggy morning with a light fog about 4 feet from the ground. He was about 400 feet from the man on the track when he first discovered there was an object on the track, but he could not at that time distinguish whether the object was a man or just an object. He said:

"I Would say I was about 275 feet away when I saw it was a man. When I discovered it was a man, I applied the air brakes and attempted to stop; that was all I could do."

Upon cross-examination he testified:

"I applied the air with my right hand and shut the engine with the left hand. That was about 275 feet, I guess, from the man. There wasn't anything else I could do could not have stopped that train any quicker than I did, and nothing else I could do to stop that train. We went over the man somewhere in the neighborhood of 30 or 40 feet; I do not know just exactly. * * * When I first saw this object, I was looking out all the time; that is part of my duty and I was doing that and I saw that object just as soon as I could see it saw it just as quick as anybody could have seen it. I was then close to 400 feet away. At that time it looked more like a pile of cinders. There was nothing about it to indicate to me that it was a man lying there. * * * From the time I saw that object I constantly kept looking at it, and when I got within about 275 feet of it I finally discovered it was a man. I lost no time whatever in trying to stop. There was nobody that could have done any more than I did to stop that engine. * * * We were going 30 miles per hour."

J. E. Tinnes, an experienced engineer, testified:

"The engineer should have his hand on the throttle all the time. You shut the engine off; it doesn't take much time to shut it off, probably a second, then you pull the air with the other hand, but you could shut it off and apply the air at the same time. I will say it takes a second to do both of them. It does take some little time to manipulate the machinery before the air can take effect on the brakes. After you have used this first second to shut off your steam and put on your brakes, it probably takes" a second or so from the time you apply it for the air to get into the brakes and take hold. It works pretty near this way (slapping hands together). The air has to operate on the machinery, and then the machinery on the brakes to do the work. When it takes hold she jumps. It takes a second to do both jobs. You could apply the air and set the brakes. I stated you could do both jobs at the same time, but if you have applied the air, it takes about a second for it to take hold; that is, two seconds."

This witness seems to have become somewhat confused, and said at one time that a train running 30...