Starks v. Lusk

• Decision Date: 26 June 1916
• Citation: 187 S.W. 586,194 Mo.App. 250
• Parties: HENRY LOUISA STARKS, Respondent, v. JAMES W. LUSK, W. C. NIXON, and W. B. BIDDLE, Receivers of SAINT LOUIS and SAN FRANCISCO RAILROAD, Appellants
• Court: Missouri Court of Appeals

187 S.W. 586

194 Mo.App. 250

HENRY LOUISA STARKS, Respondent, v. JAMES W. LUSK, W. C. NIXON, and W. B. BIDDLE, Receivers of SAINT LOUIS and SAN FRANCISCO RAILROAD, Appellants

Court of Appeals of Missouri, Springfield

June 26, 1916

[Copyrighted Material Omitted]

194 Mo.App. 250 at 260.

Original Opinion of June 26, 1916, Reported at: 194 Mo.App. 250.

OPINION

ON MOTION FOR REHEARING.

FARRINGTON J.

--Since the filing of a motion for rehearing by the appellants I have become convinced that the judgment in this case should not be affirmed, and that the opinion heretofore rendered is in conflict with decisions of the Supreme Court and the St. Louis and Kansas City Courts of Appeals.

That opinion contains a statement which I do not think the record will bear out, which statement is as follows: "According to plaintiff's evidence, the deceased shortly left this camp, going to the railroad and then south toward the trestle along the east side of the train while it was standing on the track opposite the camp, intending to cross over the trestle and visit a friend who lived somewhere beyond."

That portion of the above excerpt from the statement of facts which I have italicized is the part that I think is not warranted by the record. The only evidence in the record bearing on the question as to where Starks was going is found in the testimony of James Willis, as follows: "When he left the camp the train was standing on the track and something like 100 feet from where the camp was. When he got to the train he went down the railroad track by the train. He told me that morning that he was going to a neighbor's that lived on the railroad down there, he said he was going to go down there to see them and that he had met them somewhere and he was going back to see them, and I supposed that that was where he was where he was going. When he left us I never noticed him very far down the track, and never paid any attention to his reeling. I saw him going down the side of the track, and he walked off twenty or thirty steps down there and I never paid any more attention to him. He was going down by the side of the train. The next time I saw him was on the stretcher at the depot."

The evidence of all the witnesses shows that Starks left the camp where he had assisted his father in unhitching the team and started toward the defendants' railroad track, and that when he reached the track he started down toward the rear of the train and was seen to walk for only a short distance in that direction by any of the witnesses, other cars obstructing the view. We next hear of him through plaintiff's witness who swore that while the caboose of the freight train was standing some 300 feet north and east of the trestle he saw a young man answering the description of Starks sitting on the railroad ties with his arm and head resting on the rail at a point about two rail lengths back of the standing caboose. This witness aroused him, called attention to the danger, and got him off the track and down the railroad embankment and left him. The witness says that the man then started staggering back up the embankment toward the track. No more is heard of Starks until several hours after this when his dead body is found on the far side of the trestle from where he was last seen, which, under the evidence, was some 600 feet from where he had been found sitting on the ties with his arm and head on the rail.

Under the evidence it is clearly and reasonably inferable that Starks started down the side of defendants' track toward the caboose; that the man sitting or lying on the track about two rail lengths from the standing caboose was Starks; that he was killed by a collision with a railroad train on the trestle; and that it was the freight train along which he had walked, between six and seven o'clock in the evening that struck and killed him. All the witnesses for plaintiff agree that defendants' train stopped for some little time, switching and backing the cars at this station, and that it had pulled in and stopped for some time before Starks was seen leaving the camp and going toward the train. He was never seen by any witness walking on the railroad track. After he was aroused and gotten off the track by the witness who found him there, he was never seen going toward the trestle by any of the witnesses. He may have walked out on the trestle before the train backed, but there is not a scintilla of evidence in the record that he did so other than that his body was found on the...