Smith v. the Missouri Pacific Railway Company

• Decision Date: 19 December 1892
• Citation: 20 S.W. 896,113 Mo. 70
• Parties: Smith v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

20 S.W. 896

113 Mo. 70

Smith v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

December 19, 1892

Appeal from Pettis Circuit Court.

Reversed.

H. S Priest and W. S. Shirk for appellant.

(1) The demurrer to the plaintiff's evidence prayed at the close of her case should have been given. It did not make out a case, and clearly showed such gross contributory negligence on the part of plaintiff's deceased husband as barred a recovery. Nor was it aided by the evidence afterwards introduced by the defendant. Beach on Contributory Negligence, secs. 7, 13; Shearman & Redfield on Negligence sec. 1, and authorities; Turner v. Railroad, 74 Mo 602; Weber v. Railroad, 100 Mo. 194. (2) The demurrer should have been sustained for the further reason that plaintiff below relied entirely upon the fact that Smith's train was not ordinarily required to stop at Lamonte, and hence was entitled to a clear track there, and that it was a negligent act to allow another train to be in his way. This was not sufficient. (3) Plaintiff's first instruction is radically wrong. It furnished the jury no guide as to the measure of damages, but left them to grope in the dark and fix the damages according to their own unrestrained will. This was error. Parsons v. Railroad, 94 Mo. 286; McCowan v. Steel Co. 16 S.W. 236; Schaub v. Railroad, 16 S.W. 924. (4) The plaintiff's second instruction is also wrong. There was not a particle of evidence on which to base that part of it, with reference to a failure to give Smith notice that Williams' locomotive occupied the track at Lamonte. The evidence is all the other way, and is uncontradicted and undisputed. It is reversible error to give such instruction. Miller v. Railroad, 90 Mo. 389; Harty v. Railroad, 95 Mo. 368. (5) It was error to permit plaintiff to testify, against defendant's objection, to the number of her children and age. The damages should be confined to compensation for the wife's loss of her husband. Stephens v. Railroad, 96 Mo. 214; Dayarsh v. Railroad, 103 Mo. 577. (6) The court should have directed the jury, by giving defendant's instruction as prayed, to find a verdict for the defendant at the close of the whole evidence. (7) Plaintiff's petition is fatally defective. The only negligence alleged, viz., failure to notify Smith of the presence of Williams' engine on the track, is shown to have been the negligence of a fellow servant. (8) Plaintiff is not entitled to recover under any view of the facts disclosed. The cause should not therefore be remanded for a new trial, but simply reversed. Carroll v. Railroad, 17 S.W. 889.

G. W. Barnett and Louis Hoffman for respondent.

(1) The demurrer to the evidence was properly overruled, besides defendant's evidence supplied any supposed deficiency in plaintiff's evidence. (2) The trains all ran under the direct order of the train dispatcher who ordered the three freight trains out from Sedalia knowing that they would meet a fourth freight train at Lamonte and knowing all these trains would be there in the night time when these two fast passengers would go through. Smith v. Railroad, 92 Mo. 359. (3) There is nothing to show contributory negligence on the part of deceased. (4) The jury was not bound to believe defendant's evidence. Kennedy v. Holliday, 25 Mo.App. 517; Gregory v. Chambers, 78 Mo. 298; Hipsley v. Railroad, 88 Mo. 348. (5) The instructions given for plaintiff were correct. (6) The conductors of the freight trains which obstructed the main track were not fellow servants of deceased, who was an engineer on a passenger train. Miller v. Railroad, 19 S.W. 58; Railroad v. Ackley, 8 S.W. (Ky.) 691; Smith v. Railroad, 92 Mo. 359; Railroad v. Herbert, 116 U.S. 642; Hough v. Railroad, 100 U.S. 213; Railroad v. Hoyt, 9 W. Rep. (Ill.) p. 785; Railroad v. Ross, 112 U.S. 377; Railroad v. O'Brien, 21 P. 32. (7) The mere fact of the collision of the two trains on defendant's road is prima facie evidence of negligence on defendant's part. Patterson's Railway Accident Law, sec. 375, pp. 438 and 439. Railroad v. Mowery, 36 Ohio St. 418; Railroad v. Allbritton, 38 Miss. 242; Smith v. Railroad, 32 Minn. 1.

OPINION

Gantt, P. J.

This is an action by the plaintiff, as a widow of Samuel S. Q. Smith, for damages resulting to her from his death, occasioned by the alleged negligence of the defendant, in whose service he was employed as locomotive engineer at the time of his death.

The petition is substantially as follows: That, on the night of July 1, 1887, the plaintiff's husband was running an engine pulling the fast mail train from Kansas City to Sedalia; that it was a dark and rainy night; that it was defendant's duty to furnish a safe track free from obstructions for the passage of said fast mail train of cars, it being entitled to the right of the track in preference to all other trains, and that it was defendant's duty to keep its main track clear and unobstructed by other cars, to allow this train to travel safely; that said fast mail train was not required to stop at the station of Lamonte, but it was the duty of plaintiff's husband to run his train through said town at full speed, and that it was defendant's duty to keep its main track open and free from obstruction, and have no other cars thereon; that on said night, defendant carelessly and negligently caused a train of freight cars to be placed upon the main track at said station of Lamonte, and permitted it to be standing thereon at the time said fast mail was due at said station; that defendant did not notify Smith that said freight train was upon said track, and neglected to send out any signals or lights or notice thereof; that it was a dark night, and there were no lights to indicate where said freight train stood, or that any freight train was there; that said Smith, without any notice or knowledge that said train was there, run his engine into it, and he was killed.

The answer is a general denial and a plea of contributory negligence, directly causing his death.

The plaintiff's evidence consisted of her own evidence and Dr. Walker and Mr. Barnett.

The plaintiff simply testified that she was the widow of Samuel Smith, the deceased engineer; that she had one child, a son four years old; that her husband was an engineer in the employment of the Missouri Pacific Railway Company; that he was brought home dead on the second day of July, 1887, and she was told that he was killed in a wreck of his engine at Lamonte while pulling a passenger train the night before. This was admitted by defendant. Her husband was earning $ 120 per month. He was forty-one years old and a stout, healthy man.

Dr. Walker testified that he lived at Lamonte. Was a practicing physician. Remembered a wreck at Lamonte on the night of July 1, 1887. Was called to see Smith, the engineer. He only lived about thirty minutes after he reached him. The wreck occurred five hundred yards west of the depot in Lamonte and a few feet west of the west end of the switch. It was a dark rainy night. There are two sidetracks at this station, one on the south side of the station house or depot, the other on the north side of the depot, both were pretty full of cars at the time of the accident. He was acquainted with the grades of the railroad. He testified it was down grade for three quarters of a mile coming east towards the depot from the west, from a half to three quarters of a mile. A person could see the town from a point about one mile west very distinctly, then as you approach the town you come to a little sag in the road. You can stand at the point of the wreck and see the elevation, but not the road beyond; from Lamonte you can see places beyond the elevation. He testified that passenger trains, like the one deceased was pulling, usually passed the station without stopping unless they had passengers for the station. He also testified, that, standing at the west end of the switch where the accident occurred, you could have seen an engine with a headlight burning a mile distant and an engineer coming from the west could have seen the headlight of an engine standing on the track at the switch for a half mile any way. He had lived in Lamonte ten years, about fifty feet from the railroad track and had never seen a freight go through the town at night without a headlight burning.

Mr. Barnett corroborated Dr. Walker as to the grades. He thought an engineer coming from the west could see another locomotive at the switch as soon as he reached the summit of the hill beyond Lamonte, a mile and a half distant. "There is nothing to obstruct the view there for some distance west of the west end of the switch, it is wholly unobstructed for a quarter of a mile." This was all of plaintiff's oral evidence.

Plaintiff put in evidence defendant's time-table or schedule in force at the time, under which this passenger train number 4 was running on the Missouri Pacific railroad, showing that the train on which engineer Smith was killed was running as the second section of number 4, and was due in Lamonte at 11:42 (that night), and that trains marked with a red dagger indicated that they did not stop at stations for passengers and this second section of number 4 was so marked, and showing also that trains or stations marked with large figures denoted meeting and passing of trains and that Lamonte was not so marked with large figures and that the second section of train number 4 was not required by this schedule to stop at Lamonte. That Knobnoster, the station west of Lamonte, was the passing station and the train did not stop after leaving that point till it reached Sedalia. It also appeared that this section was required by schedule to run ten minutes behind the time of the first section, and was running on...