Veatch v. Wabash R. Co.

• Decision Date: 06 June 1910
• Citation: 129 S.W. 404,145 Mo. App. 232
• Parties: VEATCH v. WABASH R. CO.
• Court: Missouri Court of Appeals

129 S.W. 404

145 Mo. App. 232

VEATCH v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

June 6, 1910.

Rehearing Denied June 28, 1910.

1. NEGLIGENCE (§ 121)—BURDEN OF PROOF.

The "humanitarian doctrine" has not affected the rule that the burden is on plaintiff to show that the injury was the direct result of defendant's negligence.

2. NEGLIGENCE (§ 134)—EVIDENCE—BURDEN OF PROOF.

Plaintiff is not required to prove negligence by direct evidence, but must prove it either by direct or circumstantial evidence, and not to leave the inference of its existence to guesswork or speculation.

3. RAILROADS (§ 398)—INJURIES TO PERSON ON TRACK.

In an action for the death of one struck by a train, evidence held to show contributory negligence.

4. RAILROADS (§ 377)—INJURIES TO PERSON ON TRACK.

That certain railroad tracks were used by pedestrians did not affect the right of an engineer to assume that one seen on the track would get out of the way in time.

5. RAILROADS (§ 390)—INJURIES TO PERSONS ON TRACK.

Where one killed by being struck by a train was walking with his back to the engine on or near the track, and was enveloped in the light from the headlight when the engine was 2,500 feet away, and he was under no disability, there could be no recovery under the "humanitarian doctrine," though the engineer did not give warning signals, nor prepare to stop.

Appeal from Circuit Court, Adair County; Samuel Davis, Special Judge.

Action by Julia Veatch against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. L. Minnis, Higbee & Mills, and Jones & Conkling, for appellant. Lozier, Morris & Atwood, for respondent.

JOHNSON, J.

This action is prosecuted by Julia Veatch to recover damages for the death of her husband, which she alleges was caused by the negligence of defendant. A trial before a jury resulted in a verdict and judgment for plaintiff in the sum of $5,000 and the cause is here on the appeal of defendant.

The cause of action alleged in the petition and sought to be maintained by plaintiff in her evidence is negligence of defendant under what is termed the "humanitarian rule." The answer, in addition to a general denial, pleads other defenses, among them that of contributory negligence. The principal contention of defendant is that the jury should have been peremptorily instructed to return a verdict for defendant. Facts disclosed by the evidence of plaintiff pertinent to that contention thus may be stated: The husband of plaintiff, Jacob J. Veatch, was struck and instantly killed by a passenger train on defendant's road at De Witt, in Carroll county. The train was a belated west-bound through passenger train which passed through De Witt without stopping about 6 o'clock in the morning of February 10, 1906. Veatch, who lived on a farm three or four miles east of De Witt, was on his way to the depot to board a local passenger train scheduled to leave at 6:20 that morning. The railroad at and near the depot runs north and south, and Veatch was walking south, when he was overtaken by the locomotive of the through train at a point about 1,100 feet north of the depot. No witness introduced by plaintiff saw the death of the unfortunate man, but a boy who attended to the switch lights found the body at about 7 o'clock. There were three tracks at this place. The one to the east was the "house track," the next was the main track, and the last the passing track. The main line and house track were eight feet and two inches apart. The through train ran south on the main line. The body was discovered on the house track, the feet on or near the west rail, the head near the east rail and northeast of the feet. It was still warm and frost on the rail near the mouth indicated that the stricken man had breathed after his body had rested in that position. A trail of disturbed ballast extending diagonally from the main track to the feet showed that the body had been dragged or projected along the cinders a distance of 40 feet or more. The left leg was broken between the knee and ankle. The scalp was lacerated on the back of the head. There was a severe abrasion on the right side of the face as though it had been dragged on the ballast, and there were bruises on the shoulders, back, and left arm. Mr. Veatch was 55 years old. He was in good health, and his senses of sight and hearing were unimpaired. He wore an overcoat and gloves. His hat was lying between the main line and the house track.

The train ran through De Witt at a speed of 30 or 40 miles per hour. The locomotive carried an electric headlight of high power, and the main line ran on a tangent a distance of 3,870 feet north of the depot. There were no obstructions to vision, and therefore there was nothing to prevent the engineer from seeing the pedestrian when he was over 2,000 feet ahead of the engine, nor was there any reason for the pedestrian not seeing or hearing the approaching engine, except the fact that he was walking with his back to it. The train consisted of a locomotive and six or eight coaches. As it rushed through the switchyards, the engine sounded danger signals, but no effort was made to stop. An ordinary stop could have been made in 800 feet and an emergency stop in half that distance. There were two road crossings north of the depot; the one farthest north being about 1,800 feet from the depot. Many people were in the habit of using the railroad tracks as a passageway between these crossings and the depot. The evidence tends to show that no warning bell or whistle was sounded except the danger signal which was given at the time of the injury.

The engineer, introduced as a witness by defendant, testified that he whistled for the road crossing and rang the bell. As he rounded the curve, he saw the deceased about even with the crossing walking between the main track and the passing track. "When I whistled for the first crossing, he stepped to the west about one foot and was walking on the ends of the ties of the passing track." This...