Sullivan v. Gideon & North Island Railroad Company
| Decision Date | 29 January 1923 |
| Citation | 247 S.W. 1010,213 Mo.App. 20 |
| Parties | SAMANTHA SULLIVAN, Respondent, v. GIDEON & NORTH ISLAND RAILROAD COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from New Madrid Circuit Court.--Hon. Sterling H. McCarty Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Gallivan & Finch for appellant.
T. R R. Ely and George Smith for respondent.
Action for damages for the death of J. W. Sullivan, the husband of plaintiff. Verdict and judgment for plaintiff for $ 4500 and defendant has appealed.
The defendant offered no evidence and there is no substantial conflict in the testimony. The servants of defendant were backing a train of fourteen or fifteen flat cars in an easterly direction on the main track of the railroad at the Two of Gideon in New Madrid County. As this train reached a much travelled street crossing in the town, the deceased who was passing north along the street stepped on the track immediately in front of the end car of the train. This car struck him but did not knock him down. He caught with one arm over the flat car and while hanging in that position was carried a considerable distance when he lost his hold, fell to the ground and was run over and killed. The track was level, the train running slowly, the sight and hearing of deceased were both good and had he looked, he could have seen the moving train before he stepped on the track in front of it. There was evidence that the statutory duty of those in charge of the train to sound the whistle or ring the bell was not observed, neither was any person standing at the end of the train as it backed toward the crossing to warn persons that might be approaching the track or to signal the engineer to stop if occasion should require. There was also evidence that if the servants of defendant in charge of the train had kept a lookout for persons at the crossing, the deceased could have been seen both at the time he was struck and while he was being carried along and that the train could have stopped before he lost his hold on the car and fell and was run over. This evidence in detail may be briefly stated as follows:
Mr. Harris, for plaintiff, testified that he heard some women screaming and looked around and saw Sullivan with his left arm up on top of the flat car. He did not see the car strike him. Sullivan was about fifty or sixty feet east of the crossing when he was run over. The train was moving five to eight miles per hour, just to guess at it. There were fourteen or fifteen cars in the train.
Mr. Smith saw the car strike Sullivan. He was on the west side of the crossing when struck. The train was running slowly, about what a man would walk--not over five miles per hour. The street is forty or fifty feet wide. This crossing narrows when it reaches the railroad track to about half that distance. The track was straight. There was no rain or sleet.
Mr. Chad testified that the train was running four or five miles per hour, about as fast as a man can walk.
Mr. Wilhelm testified that he was an engineer and had worked for appellant twelve years. Had ten years experience operating trains. Was familiar with the operation of the kind of engines they had. Did not know the condition of this engine, but it was equipped with steam jam instead of air brakes. To stop a train similar to this one in twenty or twenty-five feet would be a good stop. Stop might be made in eighteen feet. If the steam jam brakes were not working and you had to stop the engine by just using your reverse lever it would take probably fifty or sixty feet to stop the train. (There was no evidence that the steam jam brakes on this engine were not working at the time of this accident.) Ordinarily it would take the engineer three or four seconds to receive the signal, get his hands on the appliances and apply it to the point where it would begin to be effective.
Mr. Fowler testified that the ground was level. The cars attached to this train were log cars, thirty-four foot flat cars. The cars were equipped with ordinary couplings. Most of the cars were in good condition except a little worn out in the draw-heads, causing four to six inches of slack. Considering the slackness in these cars and condition of the track I don't think a man could stop any quicker than two car lengths if the train was equipped with steam jam brakes that were in working order. If the cars had no slack and a good engine it could be stopped within eighteen feet.
At the close of the testimony the defendant filed a demurrer thereto which was overruled and that action of the court is assigned as error. It is contended that the evidence shows as a matter of law that the deceased was guilty of contributory negligence and for that reason plaintiff could not recover. We agree that the evidence does show that the deceased was guilty of contributory negligence which, on the question of negligence or no negligence alone, would bar recovery. It is thoroughly settled in this State that a railroad track is in and of itself a warning of danger and it is the duty of every person who is sui juris and of mature years and in possession of his faculties of sight and hearing to look out for passing trains in approaching a railroad track, and when such a person steps upon the track immediately in front of a moving train without looking, if he could see, and without listening, if he could hear, and is injured, he is guilty of contributory negligence as a matter of law and cannot recover. [Keele v. Railroad, 258 Mo. 62, 167 S.W. 433; Burge v. Railroad, 244 Mo. 76, 148 S.W. 925; Rollison v. Railroad, 252 Mo. 525, 160 S.W. 994; Reeves v. Railroad, 251 Mo. 169, 158 S.W. 2.]
Many other cases hold the same thing. If plaintiff can recover at all in this case, it must be upon the humanitarian doctrine. That rule is based upon the humane principle that no one should be permitted to wantonly or recklessly injure another after his danger is or ought to have been discovered. In applying this rule to railroad cases the place where the injury occurs is important. Should an injury occur at a place where those in charge of the train had a right to expect a clear track and a trespasser is struck and injured, the company cannot be held liable unless its servants could have avoided the injury after they actually discovered the peril of the person injured. But when the injury occurs at a much travelled public crossing or other place...
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