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

• Decision Date: 05 June 1924
• Docket Number: No. 24054.,24054.
• Citation: 263 S.W. 182
• Parties: PINNELL v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

263 S.W. 182

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

No. 24054.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Rehearing Denied June 16, 1924.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by Velma Pinnell against St. Louis-San Francisco Railway Co. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans, of St. Louis, Howard Gray, of Carthage, and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, for respondent.

WALKER, J.

This is an action for damages brought by a widow for the death of her husband through the alleged negligence of the defendant. Upon a trial to a jury there was a verdict for plaintiff in the sum of $10,000, from which the defendant has appealed.

Paul Pinnell, nineteen years of age and the husband of the plaintiff, was killed at Racine, Missouri, at about nine o'clock p. m., November 3, 1920, while a passenger on one of the defendant's trains which, while standing on the main track at Racine, was run into by a fast freight train which was following the passenger train.

The petition alleges that the defendant caused the death of her husband by reason of the wanton, reckless, and gross negligence of its employees in the operation of the train.

The answer is, first, a general denial; second, that the deceased was, at the time he was killed, traveling on an interstate annual pass for the year 1920, which had been issued to his mother and to him, under the act of Congress, known as the Hepburn Act (34 Stat. 584), as members of the family of his father, who had long been an employee of the defendant. That subsequent to the issuance of said pass the deceased had married and had ceased to be a member of the family of his father and as such was not entitled to the use of the pass; that these facts were not known to the employees of the defendant at the time the deceased entered its train and tendered said pass to the conductor, who accepted same, which authorized the deceased to ride on said train from Monett, Missouri, to Sapulpa, Oklahoma. That said pass had printed on the back thereof the following: "This pass will be accepted for transportation over St. Louis-San Francisco Railway (and other lines therein mentioned). By its acceptance and use any and all claims against the above-named companies, and each of them, however caused or arising, for injuries to or death of the holder hereof, or loss or damage to his or her property, are hereby released and discharged. The holder hereof states that he or she is not prohibited by law from receiving free transportation, and agrees that this pass will be lawfully used, and agrees to furnish proper identification whensoever requested. I accept the above conditions." That this stipulation was signed by Paul Pinnell, the deceased, a ad became a part of said free transportation and one of the considerations for the issuance of same. That by reason of said stipulation neither Paul Pinnell, the deceased, if living, nor his widow, the plaintiff, upon his death, had any cause of action against the defendant.

The plaintiff's reply is first a general denial; and second, that the deceased at the time of his death was a member of the family of his father; that at the time he boarded the defendant's train as a passenger and was so received and accepted, he was nineteen years of age, and that his death was due to defendant's negligence; that plaintiff's cause of action arose in the state of Missouri and is governed by its laws; that laws of this state and that neither the deceased nor the plaintiff were bound thereby; that deceased was a minor, incapable of contracting or of waiving any of his or the plaintiff's rights, and that said stipulation was void; and that the acceptance of said pass by the conductor of defendant's train and the receiving of the deceased as a passenger entitled the latter to all the rights of a passenger and imposed upon the defendant all of the duties of a carrier to a passenger, and that the defendant is estopped from claiming that plaintiff's husband was not a passenger on its train. Upon these pleadings the case went to trial.

The facts disclose that Paul Pinnell, the deceased, and his wife were, on the third day of November, 1920, making their home, temporarily, with the family of the father of deceased; that deceased, being out of employment, concluded to go to Sapulpa, Oklahoma, to secure a job. The conductor saw the deceased on the train; that he got on at Monett, Missouri; that he had no ticket but exhibited a Frisco pass; that the conductor knew the father of the deceased on account of whose services the pass was issued, but knew nothing about his family relations, and accepted the pass as good for the transportation of Paul Pinnell from Monett to Sapulpa; that the latter and the conductor together made out what is known as an identification slip, and Paul Pinnell signed the same, which identification slip was introduced in evidence, the signature of the passholder being at the top thereof. This identification slip signed by Paul Pinnell showed that he had presented the pass for his passage from Monett to Sapulpa. The passenger train on which the deceased was riding was a local train and made all the stops between Monett to and including Racine, where the accident occurred. At Peirce City, the next station out of Monett, the train being west bound, they passed the freight train that afterwards overtook and ran into the rear end of this passenger train, at Racine. Near the station of Berwick an air hose burst on the passenger train, causing a delay of about ten minutes. The passenger train then proceeded until it got to Racine, a small station, where it made a regular stop. The brakeman noticed something wrong and got off the train to ascertain the cause and found a hot-box. This required immediate attention. Upon making this discovery the brakeman called the attention of the engineer to it, and a flag was displayed at the rear end of the train to protect it during the stop. When the flag was displayed the brakeman proceeded back east with his lantern, fusee, and torpedoes in the direction of the coming freight train. He used the necessary and usual signals described in detail in the evidence to warn the freight train of the stopping of the passenger train. In the meantime the trouble with the hot-box was adjusted, the engineer got back on his engine and sounded a recall for the brakeman, but the conductor ordered the engineer to proceed without `waiting for the brakeman. The conductor gave this order because he knew that the freight train was following and desired to take no chances. The passenger train moved something like its length, when, for some reason which could not then be discovered, it stopped. In the meantime the oncoming freight train, despite the warnings given it by the brakeman, ran into the passenger train. The engineer of the freight train was at his position on the righthand side of the engine, which put him outside of the curve where he could not see the track at the station or at the switch. The train was running at about thirty-five miles an hour as they came down grade towards the curve. The fireman or head brakeman on the engine, being on the inside of the curve, called the engineer's attention to the fusee put out by the brakeman, and the engineer immediately did all within his power to stop his train, but was unable to do so, and it collided with the rear end of the passenger train when the speed had been reduced to eight or ten miles an hour. The engineer's testimony is corroborated by the fireman and the head brakeman. The freight train consisted of an engine weighing two hundred tons and forty-four loaded freight cars. The rear coach on the passenger train was a light wooden business car used by the superintendent of motive power of the railroad company, who was in the car. The next car ahead was a coach, in the vestibule of which Paul Pinnell was killed. The impact of the freight train crushed the light wooden private car into splinters and damaged only the rear end of the passenger coach in front of it. Paul Pinnell and one other passenger were the only persons hurt. No damage was"done to any other part of the train, although it was held rigid on the track by the air set on the passenger...