Voorhees v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 30 April 1928
• Docket Number: No. 15921.,15921.
• Citation: 7 S.W.2d 740
• Court: Missouri Court of Appeals
• Parties: VOORHEES et al. v. CHICAGO, R. I. & P. RY. CO.

7 S.W.2d 740

VOORHEES et al. v. CHICAGO, R. I. & P. RY. CO.

No. 15921.

Kansas City Court of Appeals. Missouri.

April 30, 1928.

Error to Circuit Court, Grundy County; L. B. Woods, Judge.

"Not to be officially published."

Action by Frank M. Voorhees, administrator, and Dora Voorhees, administratrix of the estate of Otto Voorhees, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for plaintiff in error.

E. M. Harber and L. A. Warden, both of Trenton, for defendants in error.

FRANK, C.

This is an action for the wrongful death of plaintiffs' son, Otto Voorhees, brought under the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665). There was a verdict and judgment in favor of plaintiffs below in the sum of $6,000, and defendant has appealed.

The facts show that deceased, a boy 21 years of age, about the hour of 3:45 o'clock, on the afternoon of June 24, 1925, was killed by being run over by one of defendant's west-bound passenger trains. He had been employed by defendant for a month or more as a member of a weed-cutting gang, and had been similarly employed the previous summer.. The gang consisted of a foreman and four laborers, and was engaged in cutting weeds along the main line of defendant's interstate railroad between the town of Jamesport and Wabash crossing. The work was done by a machine which ran on the railroad tracks. The machine was equipped with sickles which cut the weeds on each side of the rails. The weed cutter was operated by the foreman and two men; the other two men were stationed, one along the track in one direction and the other along the track in the other direction, for the purpose of signaling trains to look out for the machine and the men operating it.

On the day in question deceased was acting as flagman or signalman on the east end; he having been stationed at a private crossing known as the Turley crossing, about one and a half miles east of the Wabash crossing. The Turley crossing was not at a public road, but was used by the public generally. His equipment consisted of a flag and a hook which had attached orders which he would hand up to the engineer or fireman of a passing train after he had signalled it with his flag. About 20 minutes prior to the time deceased was killed, an east-bound freight train passed Turley crossing. At that time the brakeman on this train, while sitting in the cupalo of the caboose, with his head out of the window, saw deceased, after the train passed, sit down on the north rail of the track with his feet inside of the rails, and saw him lay his flag down.

The witness Trusty testified that he lived in the vicinity of the crossing; that the witness was working in a field, and saw deceased sitting about 8 feet west of the crossing, on the north rail of the track, facing south, with his feet between the two rails; that the witness broke a bolt in his plow, and went to the house, and in going over the crossing he saw deceased lying on his back between the rails of the track, with his head and shoulders on the north rail and his feet against the south rail. The witness did not know whether deceased was awake or not; that, as the witness went over the crossing, he heard a train whistle at Blake, which was 2½ miles east of the crossing; that he returned from the house in about 10 or 15 minutes, when he found deceased's flag and staff on the track, and blood upon the rails.

Graham, the engineer of the train that ran over deceased, testifying for plaintiffs, stated:

"That the track was straight along the place where deceased was killed, and continued straight to the east for half of a mile where it curved. That he was on the north side of the engine, and, when he came around the curve going west, he saw an object between the rails, close up to the north rail, part of it projecting over that rail. That at that time he thought the freight train which had passed a few minutes before, and which he had met at Blake, had run over a hog, and that it was still lying on the track, or that an old cab cushion had been thrown out on the track. That, after he saw the object the first time, his attention was diverted. That he afterwards saw it several times. That he was looking `right that way.'

"Q. But your attention was diverted during part of that time to other duties, was it not? A. Yes, sir. * * *

"Q. Now you don't pretend, Mr. Graham, if you do so state, that you kept your eye on this object all the time that you seen it on the crossing? A. No, sir; not all the time.

"Q. Certainly not? A. I had other things to look at too. * * *

"Q. Was anything about this object that suggested to you at any time it was a human being? A. No, sir."

He further testified that it was a bright sunshiny day, and that his view was unobstructed from the time he came around the curve; that he was running from 30 to 35 miles an hour, or from 3 to 13 miles faster than the usual speed, as he was behind time; that the train consisted of five cars; that he had received what is called a "pink order" at the division point, which was east of Jamesport. This order meant that there were "people working on the track, bridge and track men * * * between designated points." The points designated in this instance were Jamesport and Wabash crossing. The pink order meant to look out for these men between those points. He testified that he received no signal whatever, but continued through to Wabash crossing without stopping or sounding the whistle.

The fireman on the train that struck deceased testified that, as the engine passed around the curve, he looked up the track, and saw that it was clear, and "I turned around, put in a fire, picked up the squirt hose, and watered the coal, and about that time passed this crossing—I got up and sit down again." The engineer and fireman both testified that they did not know that they had struck a man until after they arrived at Wabash crossing, when they were informed by the roadmaster, who had been riding on the back end of the train, that they had probably run over a man. No other employee on the train was looking ahead and saw deceased or any other object. The foreman of the weed-cutting gang had left the deceased at the crossing about an hour before the train was due, and the foreman and the machine had arrived at Wabash crossing and taken the siding there about an hour before the train passed that point.

There was testimony that the train, after coming around the curve, could have been stopped in 250 to 300 feet with safety to the passengers. There was also expert testimony that the engineer, sitting where he was in his engine cab, could have identified the object that he saw upon the track as a human being from the time he came around the curve. Mr. Trusty testified that he could see a pig seven inches high for half a mile along the track at the place in question. Deceased weighed between 150 and 165 pounds, was stockily built, and was dressed in blue overalls and a brown leather coat. Plaintiffs conducted an experiment by having a man who weighed 40 pounds more than deceased to lie between the rails of the track at the place where deceased was killed, and having a witness take a position where the train came around the curve. The witness knew that he was looking at the man who had stationed himself between the rails. He testified that he could easily discern that the object lying between the rails was a man. Over the objection of defendant, plaintiffs were permitted to show by expert witnesses that it was the duty of the engineer upon discovering an object on the track ahead to so manage his engine as to be able to stop if the object ahead proved to be a human being.

Graham, the engineer, stated that he had been an engineer for the Rock Island Railroad for 30 years, and had never before seen a human being on the track as was deceased, but that he had often seen such objects upon the track as dead hogs and cushions from trains. There was testimony that it was a common thing for trainmen to see small animals and all kinds of inanimate objects along railroad tracks, such as dead dogs, hogs, parts of horses and cows, tumbleweeds, old coats, cushions, barrels, boxes, and the like, "newspapers and all offals." The evidence further shows that deceased was a man of good habits, and had not been out late the night before, and there is no evidence as to how he came to lie down upon the track. The foreman of the weed-cutting gang, who testified for the plaintiffs, stated that it was generally known among employees working along the track that a train was due about the time it passed along the place where deceased was killed, as this train ran on regular schedule.

It is insisted by the defendant that its instruction in the nature of a demurrer to the evidence should have been given, for the reason that, under the decisions of the federal courts, plaintiffs are not entitled to recover. The case was brought under the humanitarian rule. Plaintiffs' theory of recovery is stated by them in this way:

"The rule is, where the railroad employees have right to expect clear track, it may be assumed until some object appears, it may be a bundle of hay, sack of oats, newspaper, large clump of dirt or what not, track at such point will be clear, but, whenever any such object is observed at sufficient distance to determine by looking, seeing, diligent watch, that such object is a human being, or, indeed, the "seven-inch pig" of Mr. Trusty, and avert injury thereto, and, failing to do so, the railroad company is liable, and should respond in damages."

This was also the theory upon which plaintiffs' case was submitted to the jury.

This case is brought under the Federal Employers' Liability Act, and, of course, the law to be applied to it must be that laid down by the federal courts in...