Royalty v. Lusk

• Decision Date: 13 November 1917
• Docket Number: No. 1980.,1980.
• Citation: 198 S.W. 472
• Parties: ROYALTY v. LUSK et al.
• Court: Missouri Court of Appeals

198 S.W. 472

ROYALTY v. LUSK et al.

No. 1980.

Springfield Court of Appeals. Missouri.

November 13, 1917.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Theresa Royalty against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. From a judgment for defendants, plaintiff appeals. Affirmed.

D. H. Kemp, of Monette, and Hugh Dabbs, C. V. Buckley, and Norman Cox, all of Joplin, for appellant. Howard Gray and Allen McReynolds, both of Carthage, and Mann, Todd & Mann, of Springfield, for respondents.

BRADLEY, J.

This cause was originally filed in Lawrence county by plaintiff, Theresa Royalty, widow of A. W. Royalty, deceased, for damages for the alleged negligent killing of her husband by the agents of defendants in the operation of a passenger train on the 14th day of July, 1916. The venue was changed to Jasper county.

Plaintiff's husband, A. W. Royalty, was a railroad engineer, and on the day of the accident was ordered to take one of defendants' engines and caboose from Joplin to Oronogo Junction and there pick up some cars of chat and take them to Pierce City. The train which deceased was pulling was known as "extra freight No. 517." After taking the cars of chat to Pierce City, extra freight No. 517 received orders to go back to Oronogo Junction with the caboose behind the engine, that is, they were ordered to back from Pierce City to Oronogo Junction. Carthage is between Oronogo Junction and Pierce City. About 2,300 feet east of the depot at Carthage the Missouri Pacific crosses the main Frisco track. This crossing is protected by an interlocking plant operated by a man located in a tower built at the crossing; this tower and crossing are near the east part of the city of Carthage. The Frisco track from Pierce City to Carthage approaches this tower from the east. The engineer of a train approaching from the east indicates to the tower operator by signal what track he desires to come in on; that is, whether he desires to approach the station on the main track or on a passing track. Unless the track called for is occupied, the tower man gives the engineer the track called for. At the depot in Carthage is what is called the "red board," and this board is adjusted from the office, and indicates to an engineer whether to approach or not approach. If the red side is turned to him, it is a direction not to pass it. The red side was turned to Engineer Royalty, but notwithstanding this direction he passed this red board. Passenger train going east No. 328 on the Frisco was due to leave Carthage at 3:17 p. m., on the day of the collision which resulted in the death of plaintiff's husband. The fireman on the ill-fated extra freight No. 517 testified that just before they got to the tank he looked at his watch and it was 3:04 p. m. Engineer Royalty stopped at the tank for water. Fireman McEwen of extra freight No. 517, plaintiff's witness, testified that two or three minutes were consumed there at the tank. From the water tank to the street west of the depot is 350 feet; from this street to the west end of the house track switch is 510 feet, which switch Engineer Royalty contemplated taking, in order to leave the main track clear for passenger No. 328 east. There were about two or three switches between the tower and the house track switch, either of which Engineer Royalty might have taken. When the engine of extra freight No. 517 stopped at the water tank, the conductor and one of the brakemen got off and walked towards the depot. Royalty expected to head in on the house track switch and therefore had to back far enough west of the entrance of the house track switch so as to permit the switch to be opened. The engine, tender, and caboose which Royalty was backing altogether were about 80 or 100 feet in length. When Royalty crossed the street west of the depot backing west towards the house track switch he was running seven or eight miles an hour. On the south side of the track and for some distance west of the house track switch is a high bluff, and the track curves to the left going west around the bluff. It is about 330 feet from the opening of the house track switch in a westerly direction to the point of the bluff, and a person standing at the opening of the house track switch could not be seen by the engineer of a train approaching from the west until within about 330 feet of the opening of this switch. Between a quarter and a half mile west of the house track switch there was a "slow board" on which was painted in large letters the word "Slow" and on the post supporting this board was painted in large letters "Safety First," which words, the testimony shows, mean "to proceed with caution to the station; the engineer must be on the lookout, run with care, on account of the curves and approaches into Carthage." Fireman McEwen of extra freight No. 517 said that this meant when an engineer comes in view of one of these signs (slow board) he is supposed to proceed under control; to be prepared to stop within the space where his vision extends.

The speed of the passenger train as it came around the curve was placed from 25 to 40 miles an hour. Engineer Royalty on the extra freight No. 517 had backed far enough west to permit the house track switch to be thrown, but it had not been thrown, This was the situation as No. 328 came around the curve at 30 or 40 miles an hour. Place it at 25 miles, which is the most favorable to plaintiff as will hereafter appear. No. 328 collided with the extra freight No. 517, demolished the caboose, and killed plaintiff's husband, and this suit is brought to recover damages therefor.

The grounds of negligence relied upon by the plaintiff are: (1) That the defendants negligently, carelessly, and recklessly ran the passenger train ahead of schedule time without its engineer having said passenger train and engine under control; (2) that after the passenger train came in view of the train plaintiff's husband was running that the engineer of the passenger train negligently failed to reverse his engine or to stop his train, notwithstanding it could have been done reasonably and safely in time to have prevented the collision; (3) that the defendants failed to protect by flag plaintiff's husband's train while he was attempting to take the siding; (4) that the defendants failed to provide suitable rules regulating the speed and movement of the passenger train over the defendants' tracks between the stations of Macy and Carthage.

The answer was a general denial and a plea of contributory negligence.

At the close of all the evidence, both for the plaintiff and defendants, the court gave a peremptory instruction directing a verdict for the defendants; thereupon plaintiff took an involuntary nonsuit, with leave to move to set the same aside, and after an unavailing motion to set aside said nonsuit plaintiff has brought this cause by appeal to this court.

At the station in Carthage is a board, mentioned in the evidence as a "red board," as is used at all stations. This board is adjusted from the office and by those in charge of the office. One side is red, and a train approaching this board if the red side is turned to the engineer it is a direction to him not to pass that board; Fireman McEwen of extra freight No. 517, plaintiff's witness, testified concerning this board:

"I know what a red board is, and there was a red board up at that station. The red board is the order board; stopping signal, and there was a red board in front of the station; a stopping board to stop there for orders, and we were not supposed to go west by there without orders, and that board was there set in such a way that it indicated that at that time."

Rules Nos. 88 and 89, introduced in evidence, are as follows:

Rule 88: "At meeting points...