Ramesy v. Mississippi River & B. T. Ty.

• Decision Date: 06 February 1923
• Docket Number: No. 17203.,17203.
• Citation: 253 S.W. 1079
• Parties: RAMSEY v. MISSISSIPPI RIVER & B. T. RY.
• Court: Missouri Court of Appeals

253 S.W. 1079

RAMSEY v. MISSISSIPPI RIVER & B. T. RY.

No. 17203.

St. Louis Court of Appeals. Missouri.

February 6, 1923.

Rehearing Denied July 10, 1923.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Sarah C. Ramsey against the Mississippi River & Bonne Terre Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

Politte Elvins, of Bonne Terre, for appellant.

Chas. M. Hay and Marsalek & Stahlhuth, all of St. Louis, for respondent:

ALLEN, P. J.

This is an action brought by Sarah C. Ramsey, widow of James Ramsey deceased, to recover damages for the death of said James Ramsey alleged to have been caused by the negligence of the de, fendant's agents and servants while operating a locomotive engine in defendant's yards at Bonne Terre, Mo. The cause was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $3,000, and the defendant has ,brought the case here by appeal.

James Ramsey, who was 62 years of age at the time of his death, was in defendant's employ in its aforesaid yards. It was his duty to dry sand, for use on locomotives, in a hopper upon a stove in the sandhouse referred to in the evidence, obtaining coal as fuel for such purpose at or about a "coal chute" upon the premises, and transporting the same to the sandhouse in a wheelbarrow. He was also "general clean-up man" about the yards. It appears that in the forenoon he did the work incident to drying sand, and in the afternoon he worked with a shovel about the yards cleaning up rubbish. On the morning of May 9, 1919, he was struck and killed by one of defendant's switch engines while pushing a wheelbarrow filled with coal north toward the sandhouse, on one of defendant's tracks, known as the old main track, in defendant's yards.

In its said yards defendant maintained a "coal chute" for supplying locomotives with coal, consisting of a large bin elevated upon timbers above the height of a locomotive. a stood between what is termed the old main track and the new main track, which tracks extended at that point approximately north and south; the old main track being east of the coal chute, and the new main track west thereof. Locomotives upon either of these tracks could be supplied with coal from the coal chute. An inclined track led to the coal chute from the south, being elevated first upon an embankment and then, near and south of the coal chute, upon trestle work. East of the old main track, and about 7½ feet distant therefrom, was track No. I. And immediately east of the old main track was a plank platform, about 15 feet and 9 inches in length from north to south, situated about the center of the coal chute, and built up to the top of the rails of the track. Immediately north of the coal chute, between the old main track and the new main track, and about 4 feet and 11 inches from the former, was a large open sand bin; and still farther north, between these two tracks, and about 157 feet from the platform mentioned, was the sandhouse. South of the coal chute, between the old main track and the new main track, was a scalehouse, situated about 142 feet from said platform.

When last seen before being struck by the engine, Ramsey was standing upon the platform immediately east of the aid main track,'east of the coal chute, with a wheelbarrow full of coal, facing west; that is, facing the old main track and the coal chute, The evidence shows that the coal which he had in the wheelbarrow had been obtained by him on the west side of the coal chute, near the new main track, and that he had wheeled it east through a passageway beneath the elevated track at some point (not definitely fixed by the evidence) south of the Pool chute, and thence to the platform mentioned, where, as said, he stood facing west, with the wheelbarrow in front of him. There was no passageway beneath or through the coal chute at that point. It is said that Ramsey waited with his wheelbarrow upon the platform mentioned for 15 or 20 minutes, while a locomotive on the old main track was taking on coal and sand. It appears that this locomotive, known as engine No. 2, stopped on the old main track beside the coal bin and took on a part of its supply of coal, moved north to the sandhouse for sand, and then backed south to the coal chute far more coal. When the engine was at the sandhouse, Ramsey was seen by a witness standing on the platform in the position mentioned above. When the engine, after returning from the sandhouse, again stopped at the coal chute, it was immediately in front of Ramsey, who was then observed bye several witnesses including defendant's engineer. The testimony shows that Ramsey was "hollering" to and joking with two negro helpers who were assisting in the work of coaling the engine, telling them to hurry and get out of his way. When the engine had received its full supply of coal it first moved south; and thereupon Ramsey, it is to be inferred, at once went upon the old main track with his wheelbarrow and proceeded thereon, between the rails, north toward the sandhouse. The engineer of engine No. 2 while proceeding south, perceived that some cars had been put in on the old main track south of him, blocking his way, whereupon he immediately reversed his engine and proceeded north at slow speed. When the engine had reached a point perhaps 50 or 60 feet north of the platform mentioned, it struck Ramsey from the rear. The evidence is conflicting as to how far south the engine had moved before its direction was reversed; the testimony for plaintiff tending to show that it had moved south to a point opposite or near the scalehouse, while that for defendant tends to show that it moved south but a few feet. The only testimony touching the matter is that, from the time when the engine began to move south until it struck plaintiff while again moving north, the bell thereof was ringing, but the whistle was not sounded.

No witness saw Ramsey go on the track upon which he was struck. The evidence shows, however, that the wheel of his wheel barrow was equipped with flanges on either side thereof—so that it could be wheeled upon the rails—and that these flanges had made a distinct track between the rails of the old main track to the point where the casualty occurred. While it is said that Ramsey was at liberty to choose his own route for taking coal to the sandhouse, it appears that the space between the old main track and the coal chute or sand bin was not available for that purpose. And, while the space between the old main track and track No. 1 was more than 7 feet in width, there is testimony that at the time there was a pile of cinders in this space, between the platform and the sandhouse, forming an obstruction. There is further testimony that immediately in front of the sandhouse Ramsey had built up a place on the inside of the west rail of the old main track, so that he could wheel his wheelbarrow from that track into the sandhouse without lifting it over that rail, but that he had not thus prepared a crossing over the east rail of the track at that place.

It appears that defendant's servants in charge of engine No. 2 did not see Ramsey upon the track before the engine struck him; that the engineer heard the engine strike something and at once applied the air brakes, stopping the engine; and that thereupon one Townsend, a "fire cleaner," who was on the fireman's side of the engine, looked forward and saw Ramsey falling toward the west. Townsend, as defendant's witness, testified to the effect that by leaning out of the cab he could see an object on the track about 34 feet ahead of the engine. He had seen Ramsey standing with his wheelbarrow on the platform beside the engine. He stated that the engine had gone but a few feet south from the coal chute when the engineer reversed it and proceeded north, and that when it struck Ramsey it stopped "right at once"; that "just as the engine stopped" Ramsey fell out from the track toward the west.

Defendant's engineer in charge of engine No. 2 testified, as defendant's witness, that he last saw Ramsey when the latter was standing by the side of his engine with the wheelbarrow, at which time Ramsey was talking to one of the helpers; that shortly thereafter the witness rang the hell of the engine and moved it south about three or four feet when, noticing that the track south of him was blocked, he reversed the engine, starting north; the bell ringing at the time. He testified that, after reversing the engine, he had moved it but 15 or 20 feet north when he felt it strike something, and that he could not see an object upon the track that close to the engine, from his side of the engine, because of an air pump in front of him and the curvature of the track. He stated that an object would have

"I knew about this habit of Mr. Ramsey when I backed up and I knew it when I started forward. I didn't look to see whether Mr. Ramsey had stepped in front of the train that morning or not. I didn't even look to see...