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 |
Rehearing Denied 194 Mo.App. 250 at 260.
Appeal from Stoddard County Circuit Court.--Hon. W. S. C. Walker Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, Moses Whybark and A. P. Stewart for appellants.
K. C. Spence for respondent.
--Plaintiff sued and recovered for the death of her husband by being run over and killed by defendants' freight train while backing over a trestle southwest of the station of Delta. The train in question passed over this trestle, about 425 feet long, going north as it approached the station and, after stopping there, backed up in doing some switching so that the caboose again reached the south end of the trestle, furthest from the depot. The defendants' track runs northeast and southwest, but we speak of the directions as north and south, as did the witnesses. It was during this retrograde movement that plaintiff claims her husband was run down and killed near the south end of the trestle. Defendants' liability is based on the humanitarian doctrine in that defendants failed to have any person at the rear end of the train while backing to keep a lookout for or to warn persons of danger, or cause the train to stop after seeing a person in peril.
No one saw the accident, as deceased's body was found a corpse on the trestle some hours after this train had gone northward to Cape Girardeau. The trainmen deny any knowledge whatever of a man being killed till the same was reported to them after their arrival at such destination.
The deceased was killed about 7:00 or 7:30 o'clock in the afternoon of June 23, 1914, and in broad daylight. The track is straight from this trestle, and beyond, to the depot to the north and beyond. The depot is at the crossing at right angles of defendants' railroad and the Iron Mountain Railroad. The Cotton Belt Railroad parallels the Frisco and crosses the Iron Mountain a short distance to the east. Between these railroads and south of the depot is a camping ground, at and near which deceased was last seen alive. He went to this camp with his father and a number of friends who were to stay there during the night. 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. This was the last time his father and friends at the camp saw him alive and his body was found some two hours later, badly mangled, on and near the south end of the trestle. The exact distance of the defendants' depot from the trestle is not given, but it must be near a thousand feet, as the conductor said that his train contained twenty to twenty-three freight cars and when the engine stopped just beyond the depot the caboose was then past the trestle two or three car lengths. Other witnesses put the distance further. The camping place being nearer the depot than the length of the trestle, the deceased must have walked, in going from the camp to where he was found dead, some twelve to fifteen hundred feet. This is important as determining the correctness of the trainmen's story that the backing up movement of this train took place within a minute or two after the engine stopped at the depot and while the conductor was yet at the rear end of the train. More accuracy in respect to these distances would be helpful in solving this case. All of plaintiff's witnesses agree that the train came in while they were at the camp and came to a standstill at or before the deceased left the camp and started southward along the side of the train.
The plaintiff's theory is that the deceased, after going out of sight of his friends at the camp (being seen by them till he passed behind some cars standing on a connecting track between the defendant Frisco and the Cotton Belt roads and then going south along the side of defendants' train) continued south past the caboose and thence onto the trestle; that defendants' train then backed up without warning and with no one at the caboose on the lookout and that it caught deceased on the trestle when he was three-fourths of the way across. The conductor's version of the matter is that the train stopped with the engine at the depot and the caboose near the trestle; that it stayed there only a minute or two unloading a little freight; that he started at once to leave the caboose to go forward to the depot but had gotten not over a car length when the engineer whistled the backing up signal; that he ran back to the caboose step, gave the engineer the response signal to back up and then rode on this step to the beginning of the trestle and then stepped off after looking across the trestle and seeing that it was clear; that the brakeman had already gone forward over the train; that the conductor then went forward to the depot and the train continued backing till the caboose reached about the far end of the trestle; that the engine then cut loose from the train, did some switching, and then coupled to the train and pulled out for Cape Girardeau, he and the brakeman catching the caboose as it went by the depot. In this the conductor is corroborated by the engineer. All the witnesses agree that there was but one backing up of the caboose and train across the trestle. The plaintiff's theory further is that the train stood still when the engine stopped at the depot and before backing up a considerable longer time than thus indicated by the trainmen and that the conductor, as well as the brakemen, went to the depot before the train began backing up, leaving no trainman at the caboose at the beginning or during the retrograde movement.
There is much evidence in plaintiff's favor on this point. A stockman remained in the caboose and testified strongly that the conductor and brakeman both left as soon as the train stopped and considerably before it backed up and that no trainman was in or about the caboose thereafter until the caboose passed the depot as it was leaving that station. He admits, of course, the possibility of the conductor standing beside the car or getting on the lower step without his having seen him. The deceased went down along the train on the same side that the conductor says he was on and the conductor did not see him pass the caboose, nor meet him further up. The conductor says that if deceased had passed beyond the caboose he would have seen him on the track or trestle, as the view was plain and open. The distance from where the deceased was last seen at the side of the train to the caboose or beyond was too great to be covered by deceased in the short time indicated by the conductor before it backed up. Other witnesses, including one of defendants' witnesses, said the train did considerable switching before it backed up and one of plaintiff's witnesses says he ate a lunch during this interval. Another witness testified to seeing a young man answering the description of the deceased, though he had never seen deceased before nor did he see his body after his death, sitting on the end of a tie and leaning over the rail at a point between the caboose and the trestle. He said this man was much intoxicated and he caused him to get up and go down the dump for fear of his being run over by a train, but that the last he saw of him he was again going back on the railroad. The conductor was evidently then gone and says this incident must have happened after the train had backed up. It evidently was after he had left the caboose. The deceased had been drinking considerably during the day, but as to the extent to which his intoxication impaired his ability to care for himself varied considerably in the opinions of the different witnesses. According to his companions at the camp he had been drinking beer only and had not drank any for more than two hours; that deceased helped to take care of a team at the camp and walked around about as usual. Under the foregoing evidence we think the jury was warranted in finding that the deceased had passed the caboose and gone upon the trestle before the train backed up and that no trainman was then at the rear end of the train who could or did look out for a clear track or take steps to avert danger.
That deceased was killed by the train in question admits of...
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