Walker v. Wabash Railroad Co.
| Decision Date | 08 February 1916 |
| Citation | 183 S.W. 636,193 Mo.App. 249 |
| Parties | MYRTLE L. WALKER, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted January 5, 1916. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
STATEMENT.--This is an action under section 5425, Revised Statutes 1909, by Myrtle L. Walker, widow of Charles W. Walker, to recover damages sustained by her in the death of her husband. That section is section 2864, Revised Statutes 1899, as amended by Act approved April 13, 1905 (Laws 1905, p. 135). The defendant, contesting the constitutionality of the Act of April 13, 1905, in the circuit court, on judgment going against it, appealed to the Supreme Court. But pending the submission of the cause in the Supreme Court, that court having held the Act constitutional in Burge v. Wabash R R. Co., 244 Mo. 76, 148 S.W. 925, defendant abandoned that contention, and the amount involved not being within the appellate jurisdiction of the Supreme Court, the cause was transferred to our court.
In the amended petition upon which the case was tried, it is averred that while Charles W. Walker was in the employ of defendant in its switch yard at Moberly in the capacity of a freight conductor, looking after the making up of one of defendant's freight trains, of which he was to take charge, he was run over and killed by an engine and caboose in charge of defendant's agents and servants, and which was backing out of the yard, pushing the tender in front and pulling a caboose. This engine, tender and caboose, for brevity we arbitrarily designate as "train No. 50." Averring that it was the duty of defendant's agents and servants in charge of this train, while moving backward in the yard, to keep a lookout in the direction it was moving for decedent and other employees, it is charged that such agents and servants carelessly and negligently failed to do so. Further averring that on the day of decedent's death and for a long time prior thereto, defendant had a rule in force and effect which required the bells on its engines to be constantly rung while moving in the switch yards at Moberly, and that it was the general and universal custom of defendant, its agents and servants in charge of its engines in the Moberly switch yards, to ring the bell constantly while such engines were in motion therein, and that it was a rule of defendant to sound a "back up" signal by blowing the whistle on a standing engine before the engine was moved backward in the switch yard at Moberly, it is charged that defendant's agents and servants in charge of this train No. 50 negligently failed to give any "back up" signal before the engine began to move backward, a short time before it struck Walker, and that defendant's agent and servants in charge of that train, and while it was moving backward in the yard, negligently failed to ring the bell or sound the whistle on the engine, or to give any signal whatever of its approach to the decedent, or to give any signal that it was moving. The petition further avers that these agents and servants of defendant negligently and carelessly failed to keep a lookout in the direction the engine was moving, as it moved backward in the switch yard; that if they had used ordinary care and had kept a lookout in the direction the backing engine was moving, they would have seen Walker upon and near the track and in a place of danger, and that he was unaware of his danger of being struck by the backing engine, in time to have warned Walker of his danger by a signal from the engine, and in time, by the use of the appliances at hand, to have stopped the engine before it struck Walker and thereby have averted striking Walker, it is charged that they had negligently failed to do so. It is finally averred that as the engine backed toward and approached near to Walker, the agents and servants of defendant in charge of the engine and caboose, "saw or by the exercise of ordinary care might and would have seen said Charles W. Walker upon or close to said track on which said engine was backing and in a place of peril and danger from being struck by said engine and that said Charles W. Walker was unaware of his danger, in time, by the use of ordinary care, to have avoided hitting, running over, dragging and killing said Walker by said engine and caboose, but carelessly and negligently failed to do so." Averring that she had brought her action within six months after the death of her husband; that she was dependent upon him for pecuniary support and by reason of his death had been damaged in the sum of $ 10,000, she demands judgment for that sum and costs.
Defendant, appearing, filed a motion to elect between what are claimed to be inconsistent allegations in this petition, and that being overruled, filed a motion to strike out certain parts of the petition. This was also overruled and defendant answered. In this answer, after a general denial, defendant pleaded the unconstitutionality of the Act of 1905, above referred to, which (as we have before stated) afterwards disappeared from the case in the Supreme Court.
The reply was a general denial.
When the trial was commenced before the court and a jury, defendant objected to the introduction of any evidence on the ground of the unconstitutionality of the Act, as made in the answer, and also on the ground that the petition did not state a cause of action, in that it did not charge that the decedent was actually seen in a place of peril by the agents and servants in charge of the engine at any time before he was run over, and because the petition further showed on its face that decedent was guilty of negligence which proximately contributed to produce his death. This objection was overruled, defendant excepting, and it may be stated that these objections to the failure of the petition to state a cause of action were frequently interposed during the trial of the cause and also at the close of the evidence by demurrers to the testimony.
As it appeared in evidence, this accident happened about three or four o'clock on the afternoon of August 16, 1911, in the freight yards of the defendant railroad company at Moberly. There were something like eleven tracks there in the yard; the most southerly was the main track; the track immediately north of that was No. 1; the others lying north in their order were numbered successively 2, 3, 4, 5, 6, and so on. The distance between each track was seven feet; the distance between cars when in place opposite each other on two adjoining tracks was about two feet. The distance between the rails was four feet and eight and a half inches. Mr. Walker was the conductor of a freight train, No. 64, which was being made up on track No. 4, that train to be taken east to a station called Luther, east of Moberly and just north of St. Louis. Four freight cars of Walker's train, with a caboose attached, were in place on track No. 4, and were on the west end of track No. 4, just clear of the east "lead" into that track. Further east down on track No. 4 were some four or five freight cars to be placed in Walker's train, separated from the east car in place on track No. 4 by about thirty car-lengths--say seven or eight hundred feet--a clear track between them and the rear cars in place. Walker was to take out these with his train. On track No. 3 and about opposite these rear cars on track No. 4, was the tender, then the engine, its back in front, facing west, then the caboose, coupled to the front part of the engine. These are what we call "train No. 50." The tender was ten feet wide and twenty-eight feet long.
It was intended to back this train up to Stoutsville, a station east or northeast of Moberly, for the purpose of getting cars and bringing them to Moberly. This combination, or "train 50," had been waiting on this track No. 3 for some twenty-five or thirty minutes for the passing of a train on the main south track. One Heifner was its conductor, Vallelly engineer, Michaels fireman. Mr. Walker was engaged in taking the numbers and marks from the cars that were to be in his train. He apparently had finished with the four cars in the rear of his train and was going forward to the other cars which were also on track 4 and further east, separated, as before said, some distance from these four rear cars. There was evidence to the effect that Vallelly, the engineer, saw Walker just as that engineer started to pull out with his engine and caboose; saw him walking down (that is east) between tracks 2 and 3. Walker was then five or six car-lengths east of this engine and caboose (train No. 50) and had his back toward them. The engineer got on the front end of the caboose next to the engine and went from that to his engine and started it up--started it toward the east. The fireman, Michaels, was on the platform of the caboose next to the engine, and when he saw Vallelly, his engineer, walking toward the engine, he got on the engine. It was a very hot day, and the fireman sat on the north side of the caboose to be in the shade. While sitting there, as he said, he saw Walker, who went by, checking his train on track No. 4. The caboose of Walker's train on track No. 4 was about in line with and opposite the caboose of train No. 50, which was on track 3. As Mr. Walker came by he remarked to this fireman that it was a very warm day "to walk way down there to get a few car numbers;" "a hot day to walk down to the other end of the yards." The fireman testified that he knew from what Walker said that he was going right down to get the car numbers of the cars at the other end; that he started to walk between tracks 3 and 4. The fireman also asked Walker what he was going...
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