Wack v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 03 June 1913
• Parties: MARGARET WACK, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

157 S.W. 1070

175 Mo.App. 111

MARGARET WACK, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from St. Louis City Circuit Court.--Hon. William B. Homer Judge.

Judgment affirmed.

R. T Railey and James F. Green for appellant.

(1) The evidence in the case was insufficient to authorize a recovery on part of plaintiff, and the court should have so declared. Warner v. Railroad, 178 Mo. 133; Gumm v Railroad, 145 Mo.App. 339; Green v. Railroad, 192 Mo. 143; Laun v. Railroad, 216 Mo. 579; Waggoner v. Railroad, 152 Mo.App. 179; Smart v. Kansas City, 91 Mo.App. 586; Payne v. Railroad, 136 Mo. 562; Sanguinette v. Railroad, 196 Mo. 466; Swearingen v. Railroad, 221 Mo. 660. (2) Plaintiff's instruction on the measure of damages was erroneous. Calcaterra v. Iovaldi, 123 Mo.App. 347; Marshall v. Mining Co., 119 Mo.App. 273; Barth v. Railroad, 142 Mo. 559; Schaub v. Railroad, 106 Mo. 93; Porter v. Railroad, 71 Mo. 81; Rains v. Railroad, 71 Mo. 164; R. S. 1909, sec. 5426; Moyes v. Railroad, 158 Mo.App. 461. (3) The court committed error in refusing to permit defendant to prove that plaintiff's husband had been adjudged a vagrant. Defendant had the right to show the actual pecuniary loss to plaintiff on account of the death of her husband. R. S. 1909, sec. 5426; Darks v. Grocer Co., 146 Mo.App. 256; Standlee v. Railroad, 60 S.W. 781; McElwaine v. Railroad, 79 N. Y. State 426; Alexander v. Railroad, 144 Ala. 257; Marshall v. Mining Co., 119 Mo.App. 273. (4) The argument of plaintiff's counsel was improper and prejudicial, and was not sufficiently rebuked by the court. Beck v. Railroad, 129 Mo.App. 24; Norris v. Railroad, 144 S.W. 790; Neff v. City of Cameron, 213 Mo. 350; Haynes v. Trenton, 108 Mo. 123; Fatham v. Tumilty, 34 Mo.App. 236.

Thomas J. J. Stanton and David Goldsmith for respondent.

(1) The causal connection between the neglect alleged and the injury sued for sufficiently appeared. Ellis v. Railroad, 89 Mo.App. 241; Pearson v. Railroad, 33 Mo.App. 543; King v. Railroad, 211 Mo. 14. (2) The claim, that the evidence conclusively establishes contributory negligence on the part of the decedent's husband, is not well founded. Montgomery v. Railroad, 181 Mo. 507; Railroad v. Volan, 81 S.W. 130; McNamara v. Railroad, 126 Mo.App. 152; McGrath v. Railroad, 63 N.Y. 529, 530; Railroad v. Hutchinson, 120 Ill. 587; Giddings v. Railroad, 133 Mo.App. 611, 612. (3) Error in the exclusion of evidence does not appear. (a) The alleged error cannot be reviewed because the excluded evidence does not appear from the abstract or bill of exceptions. Rieger v. Welles, 110 Mo.App. 164; Railroad v. Capek, 64 Ill.App. 503; Estes v. Nell, 140 Mo. 652; Slawson v. Transportation Co., 99 Wis. 20; Ridgley v. State, 75 Md. 510; Ring v. Lawless, 190 Ill. 520; Betzler v. James, 227 Mo. 387. (b) Even if the excluded evidence properly appeared to be as claimed by the appellant, still the exclusion of it could not be held to be erroneous, because it includes, and indeed consists mainly of, the record of the conviction and sentence of the plaintiff's husband, which was incompetent. Hidy v. Murray, 101 Iowa 65; Hosley v. Black, 28 N.Y. 438; Cressey v. Kimmel, 78 Ill.App. 27; Shewalter v. Bergman, 123 Ind. 255; Pike Co. v. Hanchey, 119 Ala. 36; Graham v. Graham, 84 Ind. 325; Tumlin v. Parrott, 82 Ga. 732; State v. Bradnack, 69 Conn. 212; Carlisle v. Killebrew, 89 Ala. 329; Martin v. Blattner, 68 Iowa 286. (c) And even if this evidence properly appeared, the exclusion of it would not be erroneous, since the evidence was irrelevant. (4) The remarks of plaintiff's counsel in his address to the jury, are not ground for the reversal of the judgment in this cause. Spengler v. Transit Co., 108 Mo.App. 329; Cicardi v. Transit Co., 108 Mo.App. 470; Harless v. Railroad, 123 Mo.App. 333; Norris v. Railroad, 144 S.W. 790. (5) The instruction given with respect to plaintiff's damages was correct. Browning v. Railroad, 124 Mo. 55; Barth v. Railroad, 142 Mo. 551, 552; Minter v. Bradstreet Co., 174 Mo. 491.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit for damages accrued to plaintiff, a widow, under the statute on account of the wrongful death of her husband through the negligence of defendant in omitting to close the gates at a street crossing on its railroad. Plaintiff recovered, and defendant prosecutes the appeal.

It appears plaintiff's husband was run upon and killed at the crossing of Barton street, a public thoroughfare in the city of St. Louis, and defendant's railroad tracks. The petition sets forth and counts upon an ordinance of the city requiring railroad companies to install and maintain, at the crossings of all public streets with their railroads, gates to be lowered as a warning to persons in the street when the railroad locomotives or trains are approaching the crossing. The ordinance further requires that such gates shall operate either automatically, or that a watchman shall at all times be in charge, to the end of lowering the gates before a locomotive or train approaches. It is admitted the ordinance prevailed and enjoined on defendant the requirements mentioned, and it appears defendant had installed the gates at Barton street crossing in accordance with the ordinance. The gates were not automatic, and were operated during the day-time by a watchman. But at the time plaintiff's husband came upon the track and was killed--about ten o'clock at night--no watchman was in charge, and the gates were allowed to be open. At the point in question, defendant maintained several tracks. The evidence tends to prove--that is, it affords a reasonable inference to the effect--that plaintiff's husband came upon the railroad crossing from the west, and was killed on the second track through being run upon by defendant's switch engine, which was moving south but backwards. The gates on the west side of the railroad track were not closed, and it is to be inferred the decedent walked upon the crossing there, for he was seen upon the crossing as if going east an instant before the locomotive ran upon him.

In approaching the railroad crossing from the west, the first track in Barton street is a switch or sidetrack, and the second the defendant's southbound main line, while the third is its northbound main line. Plaintiff's husband was seen at the corner of Second and Trudeau streets, about three blocks north and west of the railroad crossing on Barton street, from half past eight to nine o'clock in the evening. No one mentions having seen him thereafter until an instant before he came to his death on defendant's southbound main line, or second track. That was about ten o'clock in the evening, or possibly a few minutes thereafter. All of the witnesses say the night was very dark and stormy. It was snowing and a blizzard prevailed. One and all agree that the wind was high, and it appears that several lights had been extinguished because of the blizzard. One of defendant's witnesses testified that the blizzard prevailed with such force as to put out the street light at the crossing of Barton street and the railroad. It appears that a locomotive and train of cars were moving slowly and backwards to the northward on the third track from the west--that is, defendant's northbound main line--and that the decedent was standing upon the crossing facing eastward as though he was waiting for the train to pass beyond so he could move forward in Barton street to the east of the track. While thus standing, defendant's switch engine, running backwards also, with its tender foremost, came from the north, going south on the second track from the west--that is, the southbound main line--and ran upon and killed plaintiff's husband. It is quite clear from the evidence in the record--and, indeed, from all of it, that introduced by defendant as well as by plaintiff--that, on account of the darkness and the storm, it was difficult to discern objects for more than a very short distance. Then, too, it appears the locomotive on the third track, which was pushing a train backwards, was very near the crossing and emitting steam copiously, which, it is said by defendant's switchman, further contributed to obscure the view thereabout. Besides the view being obscured by the combination of the extreme darkness, the prevailing blizzard, which included drifting snow, and the steam emitted from the locomotive on the third track, it is to be inferred the noises afforded by the high wind and the escaping steam impeded the sense of hearing as well.

In this situation and in such circumstances defendant's switch engine, running light--that is to say, single and alone without cars attached--came from the north, backing down the main line and upon the crossing, according to the evidence most favorable to plaintiff, at about twelve miles per hour. It appears the switch engine carried a headlight on the rear or south end, of its tender--that is, on the foremost end of the tender as it approached the crossing. But this headlight was an oil light only. The locomotive was not equipped with electric or gas lights, as is quite usual, and, as before said, the street light had been extinguished by the wind and blizzard. However, besides the oil headlight on the south end of the locomotive tender, a switchman stood on either end of the footboard on the south of the tender, each of whom held an oil railroad lantern in his hands. Though it appears plaintiff's husband, the decedent, was standing at the time either in the center of the second track on which the locomotive was approaching or between that track and the third one, awaiting the train then occupying the third track to move out of his way, one of...