Sissel v. St. Louis & S. F. R. Co.

• Decision Date: 25 November 1908
• Parties: SISSEL v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Supreme Court

113 S.W. 1104

214 Mo. 515

SISSEL v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. PLEADING (§ 8) — LEGAL CONCLUSIONS — CONTRIBUTORY NEGLIGENCE.

An answer alleging that decedent's injuries were the direct result of his negligence, in that he placed himself on defendant's railroad track immediately in front of an approaching train, which he saw, and there remained until struck, when by ordinary care he could by taking a step have returned to a place of safety, is a good plea of contributory negligence, and does not merely state a legal conclusion.

2. TRIAL (§ 150)—DEMURRER TO EVIDENCE— POWER OF COURT.

If there be no proper plea of contributory negligence, defendant cannot show affirmatively that there was contributory negligence; but if plaintiff's evidence shows such negligence, which would preclude recovery, the court may, in the absence of the plea, on demurrer to the evidence, take the case from the jury.

3. MASTER AND SERVANT (§ 234)—DEATH OF SECTIONMAN—NEGLIGENCE.

A gang of sectionmen, including decedent, was working on a track when an approaching train whistled, and the foreman called the others' attention to it. Decedent and another went to remove a hand car, and then returned to work, decedent on the outside of the rails within 12 inches of safety from a passing train and facing the train. The train approached at a speed of about 30 miles per hour, making a loud noise. The other men stepped back, but decedent remained and was killed by the engine. Held, that he was negligent as matter of law.

4. MASTER AND SERVANT (§ 248)—DEATH OF SECTIONMAN—DISCOVERED PERIL—APPLICATION OF RULE.

The rule that if those in charge of a train become aware of the peril of a person on the track, or might by ordinary care have become aware of it, in time to have averted his injury, and fail to exercise such care, there can be a recovery for his injuries, does not strictly apply to sectionmen employed in working on the track; and where a train approached a gang of sectionmen, and all of them but decedent moved out of danger, the engineer might presume that decedent, who was working on the outside of the track only a step from safety and facing the engine, would at the proper instant step out of danger. (By divided court.)

5. MASTER AND SERVANT (§ 248)—DEATH OF SECTIONMAN—FAILURE TO GIVE SIGNAL.

In an action for the death of a sectionman killed by a train, the failure of those in charge of the train to give signals at a crossing before reaching decedent could not avail, where it appeared that decedent knew that the train was approaching.

Valliant, P. J., and Lamm, J., dissenting in part.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Death action by Mollie Sissel against the St. Louis & San Francisco Railroad Company. There was a judgment of nonsuit, and plaintiff appeals. Affirmed.

H. C. Young, A. W. Lyon, and F. F. Stockard, for appellant. W. F. Evans and Woodruff & Mann, for respondent.

GRAVES, J.

Action by the widow of George Sissel, deceased, for the alleged negligent and wrongful killing of her husband by one of defendant's trains, and damages laid at the sum of $5,000. The petition, after the formal charges of the corporate existence of defendant and the business in which it was engaged, avers that for 10 days prior to the date of the accident, alleged to be September 16, 1904, deceased had been in the employ of the defendant as section hand, and at the date of the accident was engaged in work upon its railroad tracks. The petition is exceedingly long, but the negligence charged therein is summarized thus in the concluding portion thereof:

"That the servants, agents, and employés of defendant at the time and place aforesaid, when and where plaintiff's said husband was injured as aforesaid, and whilst so running, conducting, and managing said locomotive and cars thereto attached, negligently and carelessly failed and neglected to give warning by the ringing of the bell, or the blowing of the whistle, to plaintiff's said husband of the approach of said locomotive and the cars thereto attached, when they saw, or by the exercise of ordinary care could have seen, the perilous situation in which plaintiff's said husband was placed and thereby have warned plaintiff's said husband of the near and dangerous approach of said train so that he could have gotten out of the way. And by the negligence and failure of the said servants, employés, and agents when they saw, or by the exercise of ordinary care could have seen, the perilous situation in which plaintiff's said husband was placed, to use the brakes or other appliances provided for stopping said train, made up as aforesaid and their negligence and failure to use the appliances provided for stopping said train, made up as aforesaid, and their negligence and failure to use the appliances provided and at hand for putting said train under control and stopping same before it struck and killed her said husband. And by the negligence and carelessness of defendant's said agents, servants, and employés in charge of said engine and train of cars, in carelessly, negligently, and in violation of law, running across the said railroad crossing, located as aforesaid at a point at about one-fourth of a mile northeast of where plaintiff's said husband was struck and fatally injured, without first either sounding the whistle or ringing the bell attached to said engines, when, if said engineer in charge of said engine had complied with the law in that respect, and rung said bell or blown said whistle, the warning thereby given could have been heard by plaintiff's deceased husband, and enabled him to be on guard against the near and dangerous approach of said train, and thus lessened the chances of his receiving the injuries complained of herein. And by the oversight, omission, failure, and neglect of the defendant's said section foreman, and defendant's other agents, servants, and employés to instruct plaintiff's said husband to be on the lookout for passing trains and the quitting of his work at a proper and safe time and distance to avoid the danger arising from approaching trains."

The answer in the first paragraph admits the corporate capacity of the defendant, and that it operated the railroad in question, and then concludes thus: "but denies each and every other allegation in said petition, and having fully answered, asks to be discharged with its costs."

The second paragraph of the answer is couched in this language: "Defendant, for another and further answer, and separate defense, states that the injuries sustained by George Sissel were brought about by, due solely to, and the direct and immediate result of, negligence and carelessness on part of the said George Sissel, in that he voluntarily and knowingly placed himself upon the railroad track of the defendant, immediately in front of the approaching train, which he then and there saw, and there remained until struck by said engine, when by the exercise of ordinary care for his own safety he could, by taking a step, even after the train was in a distance of one rod of him, have returned to a place of safety, but negligently and carelessly failed to do so, and that said injuries were the result of said carelessness and negligence on his part, and not due to any act or omission of defendant, its agents or servants. Wherefore, defendant prays to be discharged with its costs."

We set out this answer for the reason that a point is made thereon in the briefs. No reply was filed by the plaintiff, but the case proceeded as if one had been filed, and no special point is urged for the failure to file reply.

Upon trial the plaintiff was cast upon a demurrer to the evidence, forced to take a nonsuit, which the court nisi, upon timely motion, refused to set aside, whereupon she appealed to this court. The case therefore requires a full statement of the facts shown.

The plaintiff in her own behalf said that deceased had been in the employ of defendant for 11 days preceding the accident; that he died September 16th at 7 p. m. about two hours after he was brought home; that deceased was a healthy man, 28 years of age; that he had never done railroad work prior to the employment; that he complained of being hurt in the right side.

By Dr. Matthews, the coroner of the county, who examined the body of deceased the day after the injury and death, it was shown that the right collar bone was broken, the right side bruised and ribs broken, and the right hip broken, or, rather, that the crest of the hip was mashed in. This physician also says that the injuries were confined to the right side, and none were in front.

Michael Eagen testified that he was section foreman; that he, Charles Brewster, Jim Poston, and deceased were at work one-half mile west of the depot at Republic; that deceased, Sissel, with Brewster, was working some 40 or 50 feet to the northeast of the place where he and Poston were at work; that the railroad at that point ran from the northeast to the southwest; that Sissel and Brewster were between him and the depot station at Republic; that Sissel had been working for 11 days; that Sissel was on the north side of the track, and Brewster was on the south side of the track, near the ends of the ties, leveling up the track; that Sissel was in such position that by moving back one foot he would be in an absolute place of safety; that there was a road crossing about halfway between the depot at Republic and the place where they were working; that at the time of the accident Sissel was in a stooping position, using his shovel, leveling off the ground; that Sissel had gotten about half...