Swearingen v. Wabash R. Co.

• Decision Date: 29 June 1909
• Parties: SWEARINGEN v. WABASH R. CO. et al.
• Court: Missouri Supreme Court

120 S.W. 773

221 Mo. 644

SWEARINGEN v. WABASH R. CO. et al.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

MASTER AND SERVANT (§ 276) — DEATH OF SERVANT — NEGLIGENCE — RAILROADS — EVIDENCE.

In an action for the death of a railroad brakeman, evidence held insufficient to show that his death resulted from defendants' negligence and in the manner alleged.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Etta L. Swearingen against the Wabash Railroad Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The plaintiff, the widow of Charles M. Swearingen, deceased, brought this suit in the circuit court of Jackson county, at Kansas City, Mo., against the defendant railway company and the defendants Crumrine and Drennen, the locomotive conductor and engineer, respectively, of said company, for $5,000 damages for the death of her husband, which occurred May 5, 1902.

The petition in this cause, among other things, alleges: "That one of defendant Wabash Railroad Company's lines of railroad extends from Kansas City, Jackson county, Mo., in an easterly direction to St. Louis, Mo., by way of a point known on said line as Fleming, at which point the defendant Wabash Railroad Company's road is operated and run under the track of the Atchison, Topeka & Santa Fé Railway Company, which said track is supported by a bridge or trestlework over the road and tracks of defendant the Wabash Railroad Company. That defendant the Wabash Railroad Company had prior to the injury complained of caused or permitted iron posts to be set and erected on its right of way to support the said bridge or trestlework and track of said Atchison, Topeka & Santa Fé Railway Company. Said posts were set and permitted to be set in a dangerously close proximity to defendant Wabash Railroad Company's track at and prior to the date of the injury herein complained of, making the same dangerous to life and limb of the defendant Wabash Railroad Company's brakemen in the performance of their duties in caring for and managing the cars of said defendant railroad company at said point." Then follows the allegation that on the 5th day of May, 1902, deceased was in the employ of the defendant railway company as brakeman, under the charge and control of the other defendants, and especially of the defendant A. Crumrine, the conductor of said train, and "that the defendants caused said train to be run at a dangerously high and reckless rate of speed, to wit, 35 or 40 miles per hour, which caused a boxing of one of the wheels of a freight car in said train to become heated and dangerous to said car to be run in that condition. That, when nearing said Fleming, the defendant A. Crumrine, conductor as aforesaid, with the knowledge of the defendant J. Drennen, who was the engineer on the engine of said train at said time, ordered plaintiff's husband to go forward and climb down the side of said box car, and examine and watch said hot box, and see if it would do to run to a station a few miles east known as `R. & L. Junction,' and, if not, to signal for side tracking at a station next east and close to said Fleming known as Camden station. That while plaintiff's husband was in the performance of said duty at said point, and when down on the ladder on the side of said car to make the examination in obedience to said order, he was struck by one of said iron posts, which knocked him off the side of said car and caused his death. That plaintiff's husband had never before done such work at said point, and did not know of the dangerous position of said posts, nor of his nearness to said locality, the night being dark, but the defendants knew or by the exercise of reasonable care on their part would have known of the danger, and with such knowledge did carelessly and negligently at said time order plaintiff's husband to perform the duties as aforesaid at said dangerous place, and defendants, well knowing that he was in the performance of said duty, did carelessly and negligently run and cause said train to be run at said dangerous, high, and reckless rate of speed as aforesaid," etc. The answer of the defendants was a general denial. Upon the trial the defendants objected to the introduction of evidence as to the defendant Drennen on the ground that the petition did not state a cause of action as to this defendant, which objection was sustained.

The facts of the case upon the record are that on the 5th day of May, 1902, Charles M. Swearingen, the husband of plaintiff, was, and for a period of five years prior thereto had been, an employé of the defendant as a brakeman on freight trains running between Moberly and Kansas City, Mo. On that day he was on a through freight which left Kansas City at 5:30 o'clock p. m. for Moberly. This train left Harlem, Mo., just across the Missouri river from Kansas City, Mo., an hour and five minutes late, and just before reaching Orrick, a station about 30 miles east of Kansas City, a hot box was discovered by Mr. Swearingen on the rear truck of a Rock Island freight car, located about the middle of the train consisting of 19 loaded cars, and Mr. Swearingen reported it to the conductor, Crumrine. This hot box was on the front journal of the rear truck on the north side of the car; the course of the train being eastward. The train was stopped at Orrick, the hot box cooled off, and the conductor and brakeman attached what is called a water bag to this box. This water bag is described as being of canvas, and holds about three buckets of water. There is a hose connected with it about two feet and a half long with a nozzle at the end and a clamp, so that it can be fastened to the car and so arranged that it would throw a stream of water about the size of the lead in a pencil on the journal next to the brass for the purpose of cooling it off. The deceased was present when this water bag was attached, and, when all was ready for the train to proceed, the evidence shows that the conductor thought they had just about time enough, if the box ran cool, to make Lexington Junction, and there meet a passenger train, and the conductor said to Swearingen: "We'll have to watch this box, and, if it won't run with water running on it, we'll have to stop at Camden and head in out of the way of No. 9 to put in a brass." Camden was about six miles from Orrick. As the train started, Swearingen said to the conductor: "I'll go overhead. I'll watch it from there." And the conductor said to him: "All right. You can do as you like about that." Swearingen went forward and got on the engine, the conductor got on the caboose, and the train started on its way. Shortly after the train left Orrick, Swearingen said to the engineer, "I'll go back and look at the box, and, if it's all right, we go to Lexington then, and, if not, we had better head in at Camden." The engineer testified that he told Swearingen not to go saying: "Let the box go to Lexington then, and let the car repairer look after it. We can wait there for No. 9, and you will have time to look after it while we are there." The engineer was looking forward through his window at that time, and did not see Swearingen leave the engine, nor did he or anybody else see him alive again. The train proceeded running about 30 miles an hour until it reached Lexington Junction, about 10 or 12 miles east of Orrick. At Camden the conductor says he missed Swearingen; that he also noticed the box, that there was nothing showing up on it, and added: "I thought probably that he had seen the box was all right and went back to the engine again, or, if he had left the train, I didn't know. I didn't see nothing of him." At Lexington Junction, when Swearingen's absence from the train was discovered by the crew, they detached the engine and caboose from the train, lit torches and lamps, and went back, looking for him. They found his body at a siding called Fleming, about three miles east of Orrick. The body lay about 6 or 7 feet north of the track, and about 15 or 18 feet east of a girder bridge which passed over the Wabash Railroad tracks at that point. The face of the body was bruised and scratched, and on the back of the head the skull was crushed. The cap Swearingen had worn was found between the body and this bridge, the front part of which was broken or mashed in.

Witness Gear testified that the morning following the accident he made an examination of the iron post at the end of the bridge; that he found a dent on it about six feet from the ground. This dent was 12 or 14 inches long and about 2 inches wide. Conductor Crumrine testified that he made an examination of this post, but found no mark or dent of any kind on it. The distance between the iron post and the outer edge of a box car is estimated by the witnesses testifying upon this point to be from 20 to 24 inches. The Atchison, Topeka & Santa Fé Railroad crosses the Wabash Railroad at this point overhead, and this bridge was constructed by the Atchison, Topeka & Santa Fé Railroad Company some time after the Wabash Railroad Company had built and occupied its railroad at this point. In building its railroad the Atchison, Topeka & Santa Fé Railroad Company constructed this bridge, and in doing so placed two upright iron posts — one on the north and the other on the south side of the Wabash track — which were the supports of the bridge. These railroads did not cross at right angles, but diagonally; hence one of the posts was on the north and the other on the south side of the Wabash track. The posts were located 4½ feet from the Wabash track, and this had been the condition there for a time exceeding nine years prior to the time of the accident. The evidence showed that the Wabash track under this bridge and for at least a quarter of a mile both east and west of it was straight and in good condition. The evidence also showed that the deceased had worked on local freight trains between Moberly and Kansas City for...