Swearingen v. Wabash Railroad Company

• Decision Date: 29 June 1909
• Citation: 120 S.W. 773,221 Mo. 644
• Parties: ETTA L. SWEARINGEN, Appellant, v. WABASH RAILROAD COMPANY et al
• Court: Missouri Supreme Court

120 S.W. 773

221 Mo. 644

ETTA L. SWEARINGEN, Appellant, v. WABASH RAILROAD COMPANY et al

Supreme Court of Missouri, Second Division

June 29, 1909

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

McCullough Aleshire & Showen and Hollis & Fidler for appellant.

"In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, make in his favor; and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained. But the court is not at liberty to make inferences of fact in favor of the demurrant to countervail or overthrow either presumptions of law or inference of fact in favor of the other party." Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Cameron v. Railroad, 5 Am. Neg. Rep. 454; Hughes v. Railroad, 48 S.W. 671; Ray v. City of Poplar Bluff, 70 Mo.App. 252; Fitzgerald v. Railroad, 55 N.Y.S. 1124, 37 A.D. 127; Schultz v. Moon, 33 Mo.App. 329; Railroad v. Pointer, 14 Kan. 66. "Presumption is a principle of law, by which, for the furtherance and support of right, facts not established by positive evidence, are inferred from circumstances." Erhart v. Dietrich, 118 Mo. 227; Matthews on Presumptive Evidence, p. 1; Lynch v. Railroad, 112 Mo. 433. "Where the presumption is one of fact the inferences are to be drawn therefrom by the jury." Best on Presumptions, pp. 46-51; Matthews on Presumptive Evidence pp. 388-399. "The law out of regard to the instinct of self-preservation presumes that a person who has suffered death by a railroad accident, was at the time of the accident in the exercise of due care, and this presumption is not overthrown by the mere fact of the injury." Flynn v Railroad, 78 Mo. 196; Beusching v. Gas Light Co., 73 Mo. 219; Parsons v. Railroad, 94 Mo. 286. "A structure like a signal post or fence, placed so near the track as to strike the servants when in discharge of their duties is necessarily and inherently dangerous. When it is found that the company has itself placed such a structure (or maintained it) so near the track as to be dangerous to its servants in the discharge of duties assigned to them, and an injury has occurred from that cause without fault on the part of the servant injured, the liability of the company is fixed. Additional proof is not necessary in such a case." Murphy v. Railroad, 115 Mo. 119; Devlin v. Railroad, 87 Mo. 545; Waldhier v. Railroad, 87 Mo. 37; Johnson v. Railroad, 41 Am. and Eng. R. R. Cases 293; Railroad v. Davis, 92 Ala. 300. "Evidence of negligence need not be direct and positive; it may be inferred from the surrounding circumstances." Rine v. Railroad, 100 Mo. 228; Haynes v. Railroad, 54 Mo.App. 582; Hudson v. Railroad, 32 Mo.App. 668; Hill v. Scott, 38 Mo.App. 370; McCray v. Railroad, 34 S.W. 95.

J. L. Minnis and Frank P. Sebree for respondents.

(1) There was a total failure of proof of the material allegations of the petition, and the court did not err in instructing a verdict for defendants. Appellant's whole case is built upon her presumptions and these presumptions, even when taken alone, have no foundation in fact. It is well settled that a fact cannot be established by building one presumption on another. If a certain fact is proven, reasonable inferences of another fact may be drawn from the fact proven, but this is as far as the rule of presumption goes. It is not permissible to undertake the establishment of a fact by several presumptions, the one resting upon the other. The authorities are harmonious and very positive on this question. Swartz v. Frank, 183 Mo. 447; Yarnell v. Railroad, 113 Mo. 580; Douglass v. Mitchell's Exr., 35 Pa. St. 440; State v. Lackland, 136 Mo. 32; Manning v. Ins. Co., 100 U.S. 697; U. S v. Ross, 92 U.S. 283; Glick v. Railroad, 57 Mo.App. 104; Bigelow v. Railroad, 48 Mo.App. 372; Moore v. Renick, 95 Mo.App. 211; Diel v. Railroad, 37 Mo.App. 458. (2) There was no evidence of negligence on the part of defendant in reference to the iron post in question. In the Murphy case, 115 Mo. 111, chiefly relied on by appellant, where the engineer was struck by a fence at a cattle-guard while on the side of his moving engine making repairs, the court laid great weight upon the fact that the engineer had no knowledge of the fact that the fence was close to the track. He had only passed this cattle-guard twice in the day time. The facts in the case at bar concerning the knowledge of the alleged obstruction and its relation to the track are entirely different from the facts in the Murphy case. No intelligent man could have worked switching cars and manipulating the switch under this bridge for years as did Swearingen without observing that these posts were close to the track. And having this knowledge he could not have complained that the company was negligent in respect thereto, nor can plaintiff. On the other hand, his act in getting on the side of the car, if he did so, when the train was approaching this bridge was such negligence on his part as defeats this action.

OPINION

FOX, J.

The plaintiff, the widow of Charles M. Swearingen, deceased, brought this suit in the circuit court of Jackson county, at Kansas City, Missouri, against the defendant railway company and the defendants Crumrine and Drennen, the locomotive engineer and conductor, respectively of said company, for five thousand dollars 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, Missouri, in an easterly direction to St. Louis, Missouri, 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 and Santa Fe Railway Company, which said track is supported by a bridge or trestle-work 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 trestle-work and track of said Atchison, Topeka and Santa Fe Railrway 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, thirty-five or forty 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 sidetracking 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 employee of the defendant as a brakeman on freight trains running between Moberly and Kansas City, Missouri. 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, Missouri, just across the Missouri river from Kansas City, Missouri, an hour and five minutes late, and just before reaching Orrick, a station about thirty 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...