Sells v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 02 December 1915
• Docket Number: No. 17516.,17516.
• Citation: 266 Mo. 155,181 S.W. 106
• Court: Missouri Supreme Court
• Parties: SELLS v. ATCHISON, T. & S. F. RY. CO.

181 S.W. 106

266 Mo. 155

SELLS v. ATCHISON, T. & S. F. RY. CO.

No. 17516.

Supreme Court of Missouri, Division No. 1.

December 2, 1915.

Appeal from Circuit Court, Carroll County; F. H. Trimble, Judge.

Action by Cora Sells against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

The respondent instituted this suit in the circuit court of Carroll county under the second section of the Damage Act, to recover the sum of $10,000, damages sustained by her through the alleged unlawful and negligent conduct of the appellant in killing her husband, John Sells, an employé of the company. The petition was in the usual form, alleging that the appellant road was an intrastate carrier, and the answer contained a general denial, a plea of contributory negligence, and an assumption of risk. The trial before the court and jury resulted in a verdict and judgment in favor of the respondent for the sum of $8,000. In due time and in proper form the appellant appealed the cause to this court.

The appellant's evidence tended to show the following facts:

That while the pleadings did not disclose the fact, yet the evidence showed that the appellant was an interstate railroad, and was actually engaged in the transportation of interstate commerce at the very instant the husband of respondent was struck and killed by appellant's train No. 6, which was bound from Kansas City, Mo., to Chicago, Ill.; nor was there any evidence introduced to the contrary. In fact the evidence of both parties conclusively shows that the road was an interstate carrier.

John Sells and the respondent were at the time of the injury husband and wife, and he was about 22 years of age and possessed of all of his faculties. He was an employé of the appellant as a night watch or trackwalker in the vicinity in which he was killed. It was his duty to walk over the track of appellant after each train passed, to see that it and the roadbed were all right before the next train came; and he had been engaged in that work for a period of about 8 months before the date of his death, which was on the night of October 15, 1911. He usually went on duty about 7:30 o'clock in the evening and remained until daylight the next morning. His home was at Dean Lake, the first station an appellant's road east of the town of Bosworth. On October 15, 1911, about 7:30 p. m., he left his home at Dean Lake, taking with him a bucket containing his midnight lunch. He was not seen alive again. There was no eyewitness to the accident that resulted in his death. The following morning his body was found at what is known as the "Kirker crossing." This crossing is about 2 miles northeast of Bosworth and about 4 or 4½ miles west of Dean Lake. The Kirker crossing is a public wagonroad crossing running north and south across defendant's railroad tracks, which runs in a northeasterly and southwesterly direction. The body of plaintiff's husband, when found, was lying about 6 feet north of the railroad track and about 15 or 20 feet west of the wagon track. His hat was lying 15 or 20 feet northeast of his body; his dinner bucket about 20 feet east of him and north of his hat. It was the custom of plaintiff's husband to carry with him two lanterns — one white, the other red. These he had with him when he left home the evening of the 15th to go on duty. The following morning, when his body was found, the white lantern was setting on the cattle guard a little west of the center and leaning against the wing fence. The red one was setting at the end of the cattle guard, right at the end of the wing fence. An examination of deceased show that his skull was broken on the right side of the head near the temple, and his left hip was bruised.

Deceased was familiar with the different trains passing over defendant's railroad, as well as with the time cards and schedules of the trains. In fact, he had a time card of his own which familiarized him with the running time of the trains. Just west of the road crossing were the cattle guards and wing fences. The wing fence had recently been painted white. It had rained somewhat the night previous. An examination of the fence the next morning when the body of deceased was found, showed footprints of mud on the bottom boards, while white paint corresponding in color and appearance with the paint on the fence was found on seat of deceased's trousers, indicating that he had been sitting on the wing fence. From the Kirker crossing, where the body of deceased was found, the railroad track west for a distance of about 1,000 feet was straight, and the view unobstructed. Train No. 6, the one which struck and killed deceased, was an east-bound passenger train running from Kansas City to Chicago. Its Kansas City leaving time was 7:30 p. m., and it left Kansas City on or about schedule time on the evening of the 15th. That between Kansas City and Kirker crossing it had lost considerable time. If it had been running on schedule time, it would have passed Bosworth at 10:15, but on the night in question it did not pass Bosworth until 11:49, and Kirker crossing at 11:52 or 11:53.

At or near Sheffield, which, in fact, is at the eastern edge of Kansas City, something went wrong with the electric headlight on the engine. The employés in charge of the train being unable to repair it, placed a railroad lantern in the headlight cage, in front of the reflector, which, some of the evidence for the appellant tended to show, illuminated the track some 40 or 50 feet, while most of that for the respondent tended to show that it did not illuminate the track but for a few feet, and two or three of her witnesses testified that the lantern was not burning at the time of the injury. A number of the coach lights were burning all the time and their light reflected out of the windows. The train was also provided with markers at the rear end, being red and green lights, which projected out 6 or 8 inches from the coaches. Upon the other hand, the engineer, brakeman, and conductor all testified that the lantern was continuously in the headlight cage and burning until the train reached Ft. Madison, Iowa. Not only that, but the night operators at Bosworth, Dean Lake, and Marceline all testified to the fact that the lantern was in the headlight cage and burning as the train passed through these several stations. At Floyd, a station on defendant's road, Montrose and Clancy, conductor and engineer, respectively, in charge of the train, wired to the dispatcher's office, "Headlight on Engine 557 out of order; running with a lantern for headlight."

The appellant's evidence tended to show that the engine bell was ringing when the Kirker crossing was reached and crossed, and had been since the train left Kansas City; that engine was equipped with an automatic bell, provided with air-bell power, and when set to ringing it continues to ring until the air valve is shut off. The evidence tended to show that a person at the Kirker crossing seated on the wing fence could have seen the light from the lantern in the headlight cage on the approaching train as far as the track was straight — a quarter of a mile west; that a person who was seated on the wing fence, as indicated by the mud prints and disturbed paint, in a leaning or stooping posture, would be struck on the head by the pilot on the engine.

The evidence for the respondent was substantially as follows:

That on the morning of October 16, mud, apparently off of the feet of the deceased, was found on the cattle guards and also on the lower board of the wing fence; also that white paint or whitewash off of the newly painted wing fence was found on the seat of his trousers, and signs of his having sat on the fence were found near the middle of the second board thereof; also that a small lunch can, carried in his lunch bucket, was found empty, or partly empty, with his white lantern, sitting on the cattle guard near the center of the wing fence, and a spoon, broken dishes, food, and bread crusts were found strewn along a disturbance of the earth and cinders. That Leland Jones and Harry Crispin testified that they drove over the Kirker crossing at about 12 o'clock that night (just after an east-bound train had passed, the headlight and crossing signals of which Jones could not see or hear), and that they saw deceased's burning lanterns sitting where they were found the next morning, but did not see the deceased, and that Jones' horse shied around some object lying east of the wing fence and just west of the traveled road (evidently Sells' body) where the body was found lying the next morning. That the deceased's body was cold and stiff at 9 o'clock next morning when found.

The testimony of witness Geary and other witnesses shows that the distance from Bosworth to Dean Lake is 6.2 miles; and the testimony of witness Humpston, and the operator's train register kept by him show that train No. 6, on the night of October 15, 1911, passed Bosworth at 11:49 o'clock p. m., and Dean Lake at 11:58 o'clock p. m., thus running 6 miles in 9 minutes, and therefore at the rate of 40 miles an hour at the time it struck and killed the deceased. The testimony of witness Geary and other witnesses shows that train No. 6 was due at Bosworth, according to its regular schedule time, at 10:15 o'clock p. m., and at Dean Lake at 10:27 o'clock p. m.; and the operator's train register shows that train No. 6, on the night of October 15, 1911, passed Bosworth at 11:49 o'clock p. m., and Dean Lake at 11:58 o'clock p. m., being more than an hour and a half late at the time it struck and killed the deceased.

The engineer, Clancy, testified that there was no whistling post west of the crossing, excepting one on the south side of the south track at least 40 feet south of a train on the north track, and that the lantern headlight, even if burning, would not illuminate the sides of the track to...