Smith v. Pryor

• Decision Date: 27 November 1916
• Docket Number: No. 11958.,11958.
• Citation: 195 Mo. App. 259,190 S.W. 69
• Parties: SMITH v. PRYOR.
• Court: Missouri Court of Appeals

190 S.W. 69

195 Mo. App. 259

SMITH v. PRYOR.

No. 11958.

Kansas City Court of Appeals. Missouri.

November 27, 1916.

Appeal from Circuit Court, Clay County; Frank P. Divilbiss, Judge.

Action by Richard J. Smith, administrator of the estate of Juan Leal, against Edward B. Pryor, receiver of the Wabash Railroad Company. Verdict for plaintiff set aside and new trial granted, and plaintiff appeals. Affirmed.

Ralph Hughes, of Liberty, and Edward E. Naber, of Kansas City, for appellant. N. S. Brown, of St. Louis, and Craven & Moore, of Excelsior Springs, for respondent.

TRIMBLE, J.

This is an action under the Employers' Liability Act for the death of Juan Leal, brought by the administrator of his estate for the benefit of Cornelia Sanchez as next of kin dependent upon said deceased employé.

Deceased was one of a crew of six men, consisting of the foreman and five others, engaged in doing repair work on that portion of defendant's interstate track lying between the stations of Randolph and Harlem in Clay county. They were on a hand car going to their work through a very heavy fog when a freight train, coming in the opposite direction, collided with the hand car, and Leal was instantly killed. In fact, the collision resulted in the death of the foreman and all of the men but one.

After a trial, the jury returned a verdict of $1,500 in plaintiff's favor, but the court sustained the motion for a new trial, giving the following reasons: (1) The verdict is excessive. (2) The court should have sustained defendant's demurrer to the evidence, and should have directed the jury to return a verdict for defendant. Plaintiff then appealed.

As submitted, the case was based upon a particular and specific charge of negligence in the foreman, namely, that he knew, or by the exercise of ordinary care could have known, that the track was not clear, and that a freight train was approaching in time to have avoided the collision.

The tragedy occurred on the morning of January 19, 1914. A few minutes before 7, the foreman, and his men assembled their tools and proceeded on the hand car down the side track till they came to its junction with the main line. Here the foreman ordered the hand car to stop, saying they had better wait until after a certain train (No. 52) had passed, as it was near her time. He directed that they wait until it passed, and said that he would go into the depot and ascertain if any train was out of Harlem, and "as soon as 52 goes, if there's nothing out on our line we will go." (They were then near the depot at Randolph and their place of work was west of there toward Harlem, which station was five miles distant.) While the foreman was in the depot the expected train 52 passed. The foreman came out and gave the order to start, saying, "There's nothing out of Harlem." They started. As the hand car went down the track one of the men asked if they "hadn't better look out for No. 4 (an eastbound train); its pretty near time." The foreman looked at his watch and replied that No. 4 was not yet out of Harlem. No. 4 was a Burlington train. (From a point east of Randolph west of Harlem, the Burlington and Wabash tracks lie side by side, and the tracks were used by both roads as a "double track," all west-bound trains going on the Burlington track, and the east-bound going on the Wabash.) Just after a Burlington train, going west on its track, passed the hand car with considerable noise, an east-bound train, not the Burlington No. 4, but a Wabash train, No. 72, which was an hour late, met and struck the hand car with the result above stated.

Plaintiff's evidence discloses the above facts and further shows that there was "a very dense fog" prevailing. Plaintiff's witness, Rigley, who was the only survivor, says he and the foreman were looking west; that the hand car was going 6 or 8 miles an hour; that when he first saw the headlight of the approaching train it was 30 or 35 feet away, and he tried to jump, but the collision occurred before he could do so; that the fog was very dense, and that one could see a headlight about 30 or 35 feet, but could not see that far if it wasn't for the headlight. He did not know how fast the train was going, but the engineer thereon says its usual speed was 30 miles an hour, and that it was going 25 miles on that morning. The engineer says the fog was so thick he could not see the pilot on his engine. It is difficult to understand how the foreman could have seen the train in time to have avoided the collision or how he could have heard it and distinguished it from the noise of the Burlington train on the adjacent track. The foreman went into the depot to ascertain if the track was clear and came out saying it was. There is no evidence as to what the agent informed him, and, in the absence of some showing that the foreman ought to have known that No. 72 had not passed but was late and was liable to come along or that he disregarded the information given him by the agent, it cannot be presumed that he did. Nor could the jury conjecture or guess that he did. It is therefore difficult to see wherein the foreman was guilty of the particular specification of negligence on which the case was submitted.

But, aside from this, there is another question affecting plaintiff's right to recover on the evidence as it now stands. And that is whether the one for whom the suit was brought was dependent upon the employé. The evidence properly shows that deceased had never married and had neither wife nor child, and that his parents were dead, as were also all of his brothers and sisters except Mrs. Sanchez, who was his half-sister through his mother. Mrs. Sanchez was therefore his next of kin, but the federal act gives a right of action to the next of kin only in the event that they are "dependent upon such employé."

Mrs. Sanchez was 48 years of age, had been a widow for 16 years, and had four children, two sons and two daughters, all of whom were grown and living in Uriangato, state of Guanajuato, Mexico, where she resided. Her parents in life had been Mexican laborers. She and all of her family had always been in that station. The only evidence on the question of dependency is contained in her deposition, and is as follows:

"State if such brother [referring to deceased] contributed anything to your support. ...