Peperkorn v. St. Louis Transfer Railway Co.

• Decision Date: 01 March 1913
• Citation: 154 S.W. 836,171 Mo.App. 709
• Parties: ELIZABETH PEPERKORN, Respondent, v. ST. LOUIS TRANSFER RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

154 S.W. 836

171 Mo.App. 709

ELIZABETH PEPERKORN, Respondent, v. ST. LOUIS TRANSFER RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 1, 1913

Argued and Submitted January 16, 1913. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

AFFIRMED.

STATEMENT.--By her amended petition upon which the cause was tried plaintiff charges that her husband, John H. Peperkorn hereafter referred to as the deceased, was killed by being run over by a train of freight cars operated by the agents of defendant. After a charge of general negligence on the part of defendant, section 1857 of the Revised Code of the city of St. Louis, being ordinance No. 22902, approved March 19, 1907, is pleaded. This ordinance, so far as here involved, requires that the bell of the engine of any car or train of cars, propelled by steam power, when moving shall be constantly sounded within the city limits, and that if any freight car, cars or locomotives propelled by steam power "be backing within said limits, a man shall be stationed on top of the car at the end of the train farthest from the engine to give danger signals, and no freight train shall at any time be moved within the city limits unless it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine." Averring that this ordinance applies to and is binding upon defendant and was in full force and effect at the times mentioned, it is charged that the defendant carelessly and negligently violated it in three particulars: First, that while moving its freight cars against and injuring the deceased, defendant failed to sound constantly the bell of the engine attached thereto. Second, defendant while backing its cars within the city limits, failed to have a man stationed on top of the car at the end of the train farthest from the engine to give danger signals. Third, that defendant failed to have the freight train well manned with experienced brakemen at their posts, so stationed as to see the danger signals and hear signals from the engine. It is averred that the carelessness and negligence of defendant in violating this ordinance in the above particulars directly caused the injury and death of the deceased. Following this are averments seeking to bring the case within the last clear chance rule, but as this was not insisted upon at the trial, it is unnecessary to set them out. Damages are placed at $ 10,000.

The answer, after a general denial, pleads contributory negligence on the part of the deceased.

A reply was filed, denying this.

A trial before the court and a jury resulted in a verdict for plaintiff in the sum of $ 5000, from which, interposing a motion for new trial and saving exceptions to the overruling of that, defendant has duly perfected its appeal to this court.

Plaintiff and the deceased, John H. Peperkorn, were husband and wife, the deceased at the time of his death, then about seventy years of age, being in the employ of the Mississippi Valley Elevator & Grain Company as a night watchman at its elevator, situated between Madison avenue and Clinton street and near the Mississippi river, and within the limits of the city of St. Louis. It was the duty of the deceased to look after and make the rounds of the building during the night. Along the east side of the elevator building is what is known as a "car chute," constructed for the purpose of receiving cars for loading and unloading. Through this chute a railroad track runs in a straight line, nearly due north and south. The chute or passageway is closed at each end by doors, and is just wide enough to admit a freight car, leaving a space of about seven inches on either side of the car, between it and the projections on one side of the outer wall and on the other of the building. The space between the running board on the top of the car and the beam of the south doorway or entrance to this chute is about thirty-five inches. There are girders or stringers inside of the chute running at a pitch, that are higher at one end than at the other, so that after the door beam is passed there is a clear space between the running board on the top of the car and the lowest part of these girders, of forty-four inches on the east part of the top of the car, while on the west part of the top of the car there was a clear space between that part of the top and the girder of forty-four inches on one side and between fifty-three and fifty-six inches on the other. The chute was one hundred and eighty-five feet long; long enough to hold five or six freight cars at one time. A witness for plaintiff testified that he had ridden through this chute on cars; had ridden through there on the top of a car but "had to lie down on the car, because it wouldn't clear me on top; it wouldn't clear me if I'd stand up on top of the car." If he had stood up he would have been knocked off, while by lying down on top of the car one could go through. This witness further said: "You have got to stoop down if you want to get through there," and that it is the same all through the chute. The track which goes through this chute, starting from the north of Clinton street runs straight south over Clinton and through the chute until near Madison street and then, and before crossing Madison street curves rather sharply to the west, and after crossing Madison street runs south. It is two hundred and forty-five feet from the north line of Clinton street to the south line of Madison. That is, after leaving the chute, the track curves to the west until it has crossed Madison street. This train came from the south and the cars were shoved north along it and through the chute. The south doors of this chute roll up to the top. The north doors, double doors, open outward on hinges, as shown by a plat in evidence and before us.

About half past ten o'clock on the night of the accident, a train made up of a steam engine with about ten freight cars which had been brought across the river by ferry, was stopped south of Madison street, so that the end of the rear car of the train, the forward car as the train was pushed, was stopped about one hundred and twenty feet from this south door and on the south side of Madison street. The switch foreman, who will hereafter be referred to as the foreman, who was superintending the movement of the train then being operated by defendant, walking forward, found the south door to the chute open but the north doors closed. Whereupon the foreman sent what he calls his "hind man" through the chute to open the north doors and to see that the way was clear. The foreman remained at the south entrance of the chute in front and to the south of it, until he received the signal "O. K." from his man, who was at the back or north end of the elevator, that meaning that the way was clear to shove the cars in. The foreman testified that at the same time there was a lantern shown up about the middle of this elevator (the witness by the word "elevator" referring to this chute in the elevator), down on the track in the middle of the entrance "as you shoved through it," said the witness. "My hind man passed through and both lights appeared to move backward to the north door of the elevator; both appeared to be put together to me, but who this was--I didn't speak to them, nor didn't see them, but I only seen the light. Those two lights looked to me to be at the door, in the entrance at the back end--at the north end of the elevator. I received an O. K. signal to shove the cars in." It appears that there was another track to the east of this elevator track and outside of the elevator and to the east of it and of this chute, and that there was a box car on this track, the north end of the car about on a line with the south end of the elevator and chute. The foreman walked from the entrance to the chute along and around this car to the east and over to another track further east and from that point signalled to the engineer of the train to come on. He testified that from the time he left the south entrance to the chute and until he walked around this car and got to the place from where he could signal the engineer of the engine, it took him about five minutes. Thereupon the train commenced backing into the chute. The engine pushed the train through until the two cars in front had gone clear through the chute and across and north of Clinton street. The train then stopped. The "hind man," who had been sent through the chute by the foreman, uncoupled the two forward cars, and the engine pulled the remainder of the train far enough back in and through the chute to leave some six cars in the chute, whereupon the engine and the car immediately in front of it were uncoupled from these cars and went away about other business, leaving the five or six cars inside of the chute. While the foreman was standing at the point on the eastern track from where he signalled the engineer, he could not see his "hind man," whom he had sent through to the north end of the elevator, nor could he see into the chute at all, because, as he says, the car that was on the track east of the elevator was close to the door, and he could not see through that to the elevator. No one was on the forward car of the train as it was pushed through. No one was at the entrance of the elevator after the foreman left to signal the engineer. No one preceded the train through the chute. The foreman left no one at the south end of the chute, so that for about five minutes, he testified, there was no one there at all, except the "hind man," who was at the north end opening the doors. Asked if there was any light on the first car that was backed in, h...