Purdom v. Missouri Pac. R. Co.

• Decision Date: 13 August 1925
• Docket Number: No. 3575.,3575.
• Citation: 275 S.W. 355
• Parties: PURDOM v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

275 S.W. 355

PURDOM v. MISSOURI PAC. R. CO.

No. 3575.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Rehearing Denied September 16, 1925.

Appeal from Circuit Court, Ripley County; Almon Ing, Judge.

Action by Henry Purdom against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Cope & Tedrick, and L. E. Tedrick, all of Poplar Bluff, for respondent.

BRADLEY, J.

Plaintiff sued to recover for personal injury received at a crossing in the city of Poplar Bluff. The cause was tried to a jury, plaintiff obtained judgment, and defendant appealed. Plaintiff filed his petition in two counts, but dismissed as to the first one. The negligence charged in the second count is failure to give the statutory signals and in failing to give "any warning whatsoever." Also there is an allegation suggestive of the humanitarian doctrine, but such was not relied upon. The answer is a general denial and a plea of contributory negligence. Error is predicated on the refusal of a demurrer, and on plaintiff's instruction No. 1.

Plaintiff was struck and received the injuries complained of on May 7, 1925, on Park avenue crossing. Park avenue runs east and west, and defendant's tracks across this street run approximately northeast and southwest, but the witnesses most frequently used the terms north and south when referring to the directions which the tracks extended. There was an old building, designated in the record as the old Riverside Hotel building, on the south side of Park avenue, and on the east side of the tracks. The northwest corner of this building was within about 4 feet of the easternmost track upon which, or near which, plaintiff was struck. Plaintiff was on his way from his home to his work between 6 and 7 o'clock in the morning, and his usual route before reaching Park avenue was northeast along the south or east, side of the tracks to a point about opposite or a few feet beyond the northwest corner of the old hotel building, at which point or place plaintiff usually turned in a northerly direction and crossed Park avenue. A short distance southwest of the crossing and on the easternmost track were two engines and tenders. One of these was headed northeast and one headed southwest. The one headed northeast was nearest the Park avenue crossing, and is called the first engine. About the time plaintiff came to these engines, the one headed northeast moved on northeast ahead of plaintiff, and passed over Park avenue crossing. When plaintiff arrived at the point opposite or a little beyond the northwest corner of the old hotel building where he usually crossed, he said that a motortruck ran up in Park avenue from the east, and that" while he was waiting on the motortruck, or just as he made his turn or made a step to cross the tracks, the tender of the engine headed south or southwest, which was at the time backing northeast, struck him. On direct examination plaintiff said:

"Just as I struck this crossing where I always do cross a motortruck run up there, and when I stopped to wait this back engine struck me. This back engine was backing up."

On cross-examination he testified:

"Q. Now, you say you was walking toward the crossing when it hit you; or was you standing still? Which was right? A. I made my turn to go across the crossing to my work.

"Q. Before it hit you had you stopped? A. I answered it; I told you I made my turn to cross the crossing.

"Q. Yes; but was you standing still or walking when it hit you? A. I answered that question.

"By the court: Well; answer it again. A. Well; I told them I made a step to go across the crossing.

"Q. Now; you said awhile ago you was later in the middle of the crossing. A. Well, the crossing goes across the railroad.

"Q. Then had you turned your face west? A. I started right angling across the crossing to go on the west side.

"Q. You told us awhile ago you was going north? A. I did go north up the river.

"Q. At the time you got hit were you going north or west? A. At the time: got hit I had started west.

"Q. Across the railroad track? A. Yes; across the crossing.

"Q. And you didn't look to see whether the engine was there at all any more? A. No.

"Q. You never looked south did you? A. No; I was looking at the front engine.

"Q. You didn't look at the other one before you started across? A. No; for it was standing perfectly still.

"Q. The last time you saw it, it was? A. Yes."

Plaintiff testified that the whistle on the engine, the tender of which struck him, was not sounded, and that the bell thereon was not rung as it backed up and struck him. He also testified that when he passed the engine and tender that struck him he did not see any one on the engine, and that it was standing still. He also stated that the first engine, the one headed north, as it passed him was ringing the bell, and that escaping steam was making "an awful racket."

Sherman Simms, the driver of the motor truck mentioned, was a witness for plaintiff, and testified:

"This was between 6 and 7 o'clock in the morning. I was delivering ice to the express office. I was fixing to drive across the track with the truck at this crossing. I was moving. As I went to drive upon the track I saw an engine come from behind the building, so I stopped my truck and backed off about G feet from the track. This engine passed on by, and while I was standing there to see whether it was going to go on or back up, I looked to the left and I saw a man hit by another engine. It was Henry Purdom. This engine that struck him was backing up. The steps on the tender struck him. He was standing on the east side of the track when he was hit. He was on the street crossing at the railroad. 'lids engine that struck him was not ringing the bell or blowing the whistle. There was no watchman stationed at the crossing that morning. I did not hear this engine that struck him ringing the bell at any time it was backing up. I was about 6 feet from the track at the time the engine went by.

"Q. State what happened to the plaintiff, Mr. Purdom, after he was struck. A. Well, he was—well, a man that was out throwing the switch saw the man fall and motioned for the engine man to stop, so the engine stopped after it had passed about a distance of 6 feet, and he came over the left side of the engine and looked out to see what happened, so I pointed down to the man lying on the ground, and he got out. I don't know what he did then; I drove on."

Harry Hart, defendant's witness and switch engine foreman, and who was in charge of the engine, the tender of which struck plaintiff, testified that the hostler, Jenkins, pulled these two engines from the roundhouse that morning; that they were coupled together when pulled out, and that Jenkins was on the engine headed north, and that no one was on the other one; that Jenkins pulled up near the Park avenue crossing and stopped, and that there the engines were uncoupled; that then Jenkins went on over the crossing with the front...