Pryor v. Payne

• Decision Date: 13 May 1924
• Docket Number: No. 23621.,23621.
• Citation: 263 S.W. 982,304 Mo. 560
• Parties: PRYOR v. PAYNE, Agent.
• Court: Missouri Supreme Court

263 S.W. 982

304 Mo. 560

PRYOR v. PAYNE, Agent.

No. 23621.

Supreme Court of Missouri, in Banc.

May 13, 1924.

Rehearing Denied July 3, 1924.

Appeal from Circuit Court, McDonald County; Chas. L. Henson, Judge.

Action by Prudy A. Pryor against John Barton Payne, as Agent of the United States Railroad Administration. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 209 Mo. App. 7, 244 S. W. 369.

W. F. Evans, of St. Louis, O. R. Puckett, of Pineville, and Mann & Mann, of Springfield, for appellant.

Leo H. Johnson, of Neosho, J. A. Sturges, of Pineville, and John T. Sturgis, of Springfield, for respondent.

SMALL, C. I.

Appeal from the circuit court of McDonald county. Suit for damages for the death of husband. Plaintiff's husband, W. A. Pryor, was struck by a freight train on the St. Louis-San Francisco Railway, while being operated by Walker D. Hines, Director General, on the 23d day of November, 1919, about 2 o'clock in the afternoon. He died from his injuries two days afterwards. The accident occurred at the crossing of said railroad with a public highway about a mile east of the town of Ritchie in Newton county.

The petition states, in effect, that when the train was about 160 rods distant, and the deceased had just stepped on the railroad track at said crossing, his legs gave way beneath him, becoming numb and useless, leaving him helpless on the railroad track, in imminent peril from the approaching train; that defendant's servants operated said train in a careless manner, approaching and passing over said crossing at a speed of 20 or 25 miles per hour, without maintaining a lookout ahead, and without giving any signals to travelers on or approaching the crossing, as required by law; that said servants saw, or by the exercise of reasonable care could have seen, the deceased on said crossing in such helpless condition in sufficient time by the exercise of ordinary care to have slowed down and stopped the train without striking him; but that said servants in charge of said locomotive and train negligently, with undiminished speed, ran said train against the deceased, so wounding him that he died on the 25th day of November, 1919. Plaintiff prays judgment for the sum of $10,000 damages and costs.

The answer was filed by John Barton Payne, Agent United States Railway Administration, and contained a general denial and a plea of contributory negligence on the part of the deceased.

The plaintiff's evidence tended to show:

The deceased at the time of his death was past 72 years of age. On November 23, 1919, he left the home of his stepson, W. H. Alburty, about 2 o'clock p. m. with Alburty, accompanied by Ed Reber, a neighbor, and. Alburty's little son, 7 or 8 years of age, to see some cattle which Alburty owned and kept in a pasture about a half mile south of his home. Alburty's home was on the public highway, which ran north and south over the crossing in question, and about a quarter of a mile north of this crossing. When they got about 207 feet south of the crossing, the deceased stopped in the road and said, "You men go on, I have had all the walking I care about." Reber and Alburty and his little son then went on south down the road about 336 feet and then east about 534 feet to where the cattle were in the pasture, stayed there a couple of minutes, and then returned west. After they had proceeded west 75 or 100 feet, they saw the freight train coming from the west, and the engine was then about 200 or 250 feet east of the crossing. They continued to walk in an ordinary leisurely way west to the public road, and then turned north and walked to the point where they had left Pryor. They saw nothing of him. They then proceeded north to the railroad crossing. They first observed Pryor's hat and pipe lying in the middle of the public road about 3 feet north of the north rail; the hat lay with the crown up, apparently uninjured. They next saw Pryor lying about 20 feet north of the north rail and northeast of the crossing. Pryor was lying partly on his left side and left arm. He was below the level of the track about 3 or 4 feet; the track there being evidently on a fill of that height. He was lying generally east and west, and his knees were drawn up toward his body, and his head was lying in a kind of a twist to the right. The railroad embankment had a place scraped off of it about 2 feet long and wide about 3 feet from the north rail. The deceased was found in this condition by Alburty and Reber within 4 or 5 minutes after they first saw the freight train 150 or 200 feet east of the crossing. As soon as they saw him, they immediately approached him, and when they got up to him, he said, "I am done for for all time to come." Alburty then testified, after deceased made this remark, as follows:

"I asked him, `What had happened, that you are here in this kind of shape?' and he said, 'The train struck me; while crossing the track my legs gave way, and I couldn't get off in time.' I said, `Did you see the train?' He said, `Yes; the train was over half way to Ritchie. I had worlds of time to have made it, if my legs hadn't given way.'

"Q. What was said, if anything, next? A. He asked us to lift him up to see if he could stand on his feet, and we did, and he asked us to leave him down. His legs hung in a kind of drawn position towards his body, he did not let them down to the ground at all. Immediately after we placed him back where he had been lying, he spoke of his pains, and we braced him up, and he spoke of his back hurting him so. While he was in that position, he said his back hurt him and that his arm was perfectly numb, the left arm. That arm was naked and the clothing had been torn away, and it was bleeding some."

It was about 10 minutes after the accident until the deceased was at the home of his stepson, Alburty, where he was taken and pill: to bed. He was conscious and knew everything at that time, and for about 2 hours afterwards, when he became unconscious. The accident happened on Sunday, and he died the following Tuesday without regaining consciousness. On the day he was hurt, it was bright, clear, and warm, and the railroad track was dry. While standing in the center of the track a half mile west of the crossing Alburty was able to discern a man vying flat on the crossing.

On cross-examination, Alburty said:

That when he first went up to Pryor, after the accident, deceased said nothing about numbness in his legs, or not being able to move a muscle. And from what the deceased said to him, he did not know whether deceased was cm the track or some little distance from the track, when he first saw the train. When back from the track 50 feet, deceased could have seen the train by looking west towards Ritchie, if the train had been half a mile away at that time. If there were not crops or something there, he could have seen it to Ritchie. There had been a corn crop there. The right of way is probably 50 feet on east (each) side from the track. He could see the train to Ritchie. Do not think he could have seen a train one-half mile west of the crossing until he was inside of the right of way, on account of the cornfield. After he got to that point, about 50 feet from the track, there would be nothing to obstruct his view of the train until after he got on the crossing.

On redirect examination, Alburty, among other things, testified:

Deceased, after he had been raised up and let down where he was injured, next said, "If I had known anything like this would have happened to me, I would not have come." I told him, that I would not have had it happen for anything, and I asked him, if his pains seemed to be relieved any, and asked him, if he knew what part of the train hit him, and he said, 'It was the wooden beam the cowcatcher was bolted to.' He repeated again that he saw the train and had plenty of time, if his legs hadn't give way under him. I think at this time he said they became numb. He told me, after I asked him how far he was from the track when his legs gave way, that he was just in the act of stepping over the south rail of the track.

"Q. Where was the train at that time, if he said? A. At the time he was crossing the track?

"Q. Yes, sir. A. He didn't say where the train was."

The testimony of Ed Reber for plaintiff was to the same effect as that of the witness Alburty, Reber testifying, things, as follows:

"He [the deceased] said, he had worlds of time to cross the track, when he saw the train coming, and he could not get off in time. He didn't say where he was when his legs gave way. He said when he went to cross the track he had worlds of time to get across, but his legs failed him."

Defendant duly objected and excepted to the admission of all declarations of deceased made after his injury as not part of the res gestæ.

Dr. Wright testified for plaintiff:

He got to the Alburty home, where Pryor was, about 4:30 in the afternoon on the day of his injury. He was in bed and unconscious. Both bones of his left arm were broken. A slight laceration on the top of his head and on the left leg was found. Skin on the back seemed to be puffed up a little, on the same side as the broken arm. Visited him the next morning and examined him again. His back showed a little discoloration and swelling. Couldn't tell whether the spinal cord was injured or not. The place on his back was something like the size of the hand. Was not present when he died. Think death was possibly from some internal injury or injury to the spine, possibly from the shock. Had treated him twice in the preceding two years for numbness in the legs.

A. E. Thane testified for plaintiff:

He was deputy county surveyor, and had surveyed the 'Frisco Railroad from Ritchie to the crossing in question. The grade does not exceed one-fifth of one per cent. The grade for a half mile west of the crossing is loss than one foot in 600. To all intents and purposes, from the crossing to Ritchie, the track runs due...