Schupp v. Wabash R. Co.

• Decision Date: 17 June 1912
• Citation: 149 S.W. 1043,166 Mo. App. 597
• Parties: SCHUPP v. WABASH R. CO.
• Court: Missouri Court of Appeals

149 S.W. 1043

166 Mo. App. 597

SCHUPP v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

June 17, 1912.

Rehearing Denied October 7, 1912.

RAILROADS (§ 376)—ACCIDENT TO PERSON ON TRACK—DISCOVERED PERIL.

Where plaintiff's decedent was killed from being struck by a train while wheeling a wheel barrow on or alongside of the track and picking up coal with the railroad company's permission, and it did not appear either that the engineer discovered decedent's peril, or that there was anything in his conduct to indicate to a person of ordinary prudence that he was not aware of his peril, in time for the engineer to have avoided striking him, the company was not liable, although the engineer actually saw the deceased at a sufficient distance to have stopped or checked the train before it reached him.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by Louisa Schupp against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. L. Minnis, of St. Louis, J. C. Wallace, of Keytesville, and Guthrie & Franklin, of Macon, for appellant. John D. Taylor, of Keytesville, Gilbert Lamb, of Salisbury, and John T. Barker, of La Plata, for respondent.

BROADDUS, P. J.

The plaintiff is the wife of George Schupp, deceased, who was killed by one of the defendant's trains near Brunswick, Mo., on the 13th day of December, 1908. She claims that his death was the result of defendant's negligence, for which she claims damages, under the statute, in the sum of $10,000. She recovered judgment for $6,000, from which defendant appealed.

There are two tracks at the point where deceased was killed, running parallel, about eight or ten feet apart, and there separating, the south line curving westward, and the north line turning to the northwest. The plaintiff claims that her husband was struck while walking on the south track, facing west, meeting the train. On the other hand, defendant claims that when the train approached from the west deceased was on the north track picking up coal and putting it into a wheelbarrow that was between the tracks; that when the train approached he saw the train and mistook which track it was on, and immediately stepped to his wheelbarrow, took hold of the wheel end of it, and moved it toward the south track, on which the train was coming; and that in so doing he stepped a little too close to the south track, and was hit by the pilot of the engine and killed.

The deceased resided in Brunswick, and his son was in the employ of the defendant as a sectionman. It was shown that the defendant gave its employés permission to gather coal scattered along its tracks. On the morning of the day mentioned, the deceased, at the request of his son, went on the railroad tracks near the western limits of the town, for the purpose of picking up coal to be used in his son's house. There was a well-beaten footpath at the point where the deceased was struck, which had been used by the traveling public for many years. The track was level and straight enough for him to have been seen by the engineer for 1,000 feet as the train approached.

The only eyewitnesses to the occurrence were the engineer and fireman and a Mr. Shepherd and his wife. It appeared by the evidence that the Shepherds were sitting on the front porch of their residence, fronting south, about three-quarters of a mile away. Their residence is on the side of a hill elevated about 300 feet above the track. At the time a man by the name of Willis was also on the porch. Mr. Shepherd's testimony is that he saw the approaching train when it was at De Witt, several miles away, and he also observed at the same time a man walking on the south track, who "every once in a while it looked like he would stoop down and pick up something, and when the train came across the bridge he was right in the middle of the track, like he was walking down the middle of the track. He never left the track until the train struck him. At the time the train left De Witt, he was bent over, sidelike. He was picking up something. I couldn't say what he was picking up. He was not looking at the train. He was bent over. I could not say how long he was on the track; but he was on it from the time the train left De Witt until it struck him. He never done anything to indicate that he knew the train was coming. I never seen him make any kind of move like anything bothered him. * * * No signal was given at all until just about the time the train struck him, and then there was two short whistles." Mrs. Shepherd's evidence corroborates that of Mr. Shepherd in all essential particulars.

The evidence of defendant's fireman was to the effect that he was attending to firing the engine and did not see deceased until the engineer gave a whistle, when he looked up and saw the man with a wheelbarrow between the two tracks, who looked as if he was trying to pull it...