Ring v. Missouri Pac. Ry. Co.

• Decision Date: 15 November 1892
• Citation: 20 S.W. 436,112 Mo. 220
• Parties: RING v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

20 S.W. 436

112 Mo. 220

RING v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

November 15, 1892.

RECORD ON WRIT OF ERROR — DEATH OF RAILROAD EMPLOYE.

1. Rev. St. § 2253, provides that the appellant or plaintiff in error, in lieu of filing a complete transcript of the record in the appellate court, may file a certified copy of the record entry of the judgment, order, or decree appealed from, together with the order granting the appeal, and shall thereafter file printed abstracts of the entire record in the office of the clerk of the appellate court. Held, that the provisions of this section apply, not only to appeals, but also where a case is certified to the appellate court on a writ of error, in a proceeding in which the judgment was not appealed from, and in which there was no order granting an appeal.

2. In an action to recover damages for the death of plaintiff's husband, through the alleged negligence of defendant railway company, it appeared that deceased was a section hand; that as the train, at the time he was killed, came up at full speed, deceased was standing from 4 to 6 feet away from the track; that it was not customary for trains to slow up on nearing section hands; that the whistle was sounded when the engine was 150 yards from the workmen, and it further appeared that deceased could not have been on the track when killed, for there were no bruises on him, except a deep wound in the back of his head. Held, that there was no evidence that the accident was caused by any negligence in the engineer.

3. It appeared that deceased and one other were working under the direction of a foreman; that deceased had been so employed on the road 9 or 10 years, and that trains frequently passed over the track every hour in the day; and there was no evidence that it was the duty or custom of foremen to warn those under them of the approach of a train. When the train gave the signal on its approach, the foreman and the other workman stepped back from 4 to 6 feet from the track, where they stood in safety until the train passed, and they both testified that when they saw deceased, as the train was approaching, he was standing about the same distance from the track. Held, that there was no evidence that the foreman was negligent in not warning deceased of the approach of the train.

Error to circuit court, Johnson county; CHARLES W. SLOAN, Judge.

Action by Harriet Ring against the Missouri Pacific Railway Company to recover damages for the death of plaintiff's husband, alleged to have been caused by the negligence of defendant. From a judgment for defendant, plaintiff brings error. Affirmed.

S. P. Sparks, for plaintiff in error. H. S. Priest and R. T. Railey, for defendant in error.

MACFARLANE, J.

This is a suit by plaintiff to recover damages for the death of her husband, Orloff Ring, by the alleged negligence of the defendant. The petition charges that deceased was in the employ of the defendant as a track or section hand, under a foreman Henry Cane; that between 7 and 8 o'clock on the morning of December 31, 1887, he was put to work, with other hands, on the track of defendant's road near the limits of the city of Pleasant Hill, under the direction of said foreman; and while so engaged, and by reason of the negligence of said foreman, and of the engineer of a passenger train running on the road, he was struck by the locomotive of said train, and from injuries thereby received he subsequently died. The specific acts of negligence charged were that on this morning the train was over an hour late, which was unknown to both deceased and the foreman, and passed the point at which they were working at the rate of 35 miles per hour. "That the engineer in charge of said train saw, or by the exercise of reasonable care could have seen, said Ring's dangerous position while at work at the side of defendant's track, in ample time to have stopped the train and avoided the injury to said Ring, but neglected to stop said train or ring the bell or blow the steam whistle attached thereto, and thus notify deceased of the approach of said train and of the danger to which he was exposed; and the said section foreman saw, or by the exercise of reasonable care could have seen, said train in ample time to have warned said deceased of the danger to which he was exposed, which said foreman saw and knew, or might have seen and known by the exercise of reasonable care, and might thereby have enabled said deceased to avoid the danger to which he was exposed, but neglected to do so." The answer was a general denial, and a plea of contributory negligence. The trial by a jury resulted in a verdict and judgment for defendant, and the case was brought to this court for review by writ of error.

There was little, if any, conflict in the evidence upon any material question. There were only two trackmen besides deceased working at the place of the accident. They were both witnesses at the trial, and the engineer and fireman were also witnesses. These four were the only persons in a condition to have seen the accident; none of them saw it, or could account for it. The road, at the place of the accident, runs nearly east towards Pleasant Hill. The foreman and three laborers were at work on the track, commencing that morning at about 7 o'clock. The passenger train from the west was due between 6 and 7 o'clock, but on this morning it was about an hour late. The foreman, deceased, and another laborer named Quick were working together, shoveling gravel. From 50 to 150 yards west of them was a whistling post, which was half a mile from defendant's yards in Pleasant Hill, and at which trains coming in were required to signal the yard men by whistle. From the whistling post to where the men were at work the track was straight and the view unobstructed. All three men were on the west side of the track, — the foreman in the middle, deceased 7 or 8 feet north of him, and the man Quick the same distance south. The whistle signal was given at the proper place, and the train went by these men at the rate of 20 or 25 miles per hour. When deceased was last seen "he was standing out from the railroad bed five or six feet, when the train came along," as the foreman testified; and about "three feet from the end of the ties," as Quick testified. Neither of them noticed him as the train passed, but, after it had gone by "about one hundred feet," he was found lying, six or seven feet from the track, with a hole, in which the finger could be inserted, in the right side of the back part of the head, the skull being broken in. From this wound he died in a few days.

These two witnesses were called by the plaintiff, and these facts were shown by evidence introduced by her. The engineer and the fireman of the engine were called by defendant. They testified that the whistle of the engine was sounded, and the train was stopped, at the crossing of the Fort Scott road, a quarter of a mile away, and that the whistle was sounded at the whistling post. They saw the men standing on the side of the road when the engine passed, none of them being near enough to have been struck by the engine. No other signals were given. They did not know that any one was struck. The rate of speed of the train was not checked....