Wertz v. C., B. & Q.R.R. Co.

• Decision Date: 25 May 1931
• Docket Number: No. 17201.,17201.
• Citation: 40 S.W.2d 515
• Court: Missouri Court of Appeals
• Parties: MARGARET WERTZ, RESPONDENT, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., DEFENDANTS; PENROD, JURDEN & CLARK CO., APPELLANT.

40 S.W.2d 515

MARGARET WERTZ, RESPONDENT, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., DEFENDANTS; PENROD, JURDEN & CLARK CO., APPELLANT.

No. 17201.

Kansas City Court of Appeals. Missouri.

May 25, 1931.

Appeal from the Circuit Court of Schuyler County. — Hon. Walter A. Higbee, Judge.

AFFIRMED.

Mills & Jayne for respondent.

Walter C. Goodson for appellant.

ARNOLD, J.

This action in damages for the death of plaintiff's husband, alleged to have been due to the negligence of defendants, was instituted in the circuit court of Schuyler county, Missouri, on February 26, 1930, against the Chicago, Burlington & Quincy Railroad Company and the Penrod, Jurden & Clark Company.

The facts of record are that the defendant railroad company owns and operates a line of railroad running east and west through the town of Downing in Schuyler county, Missouri, and that its trackage consists of a main line, and to the north of that, a side track; defendant Penrod, Jurden & Clark Company was engaged in the shipment of logs from the said town of Downing. Louis L. Wertz, deceased husband of plaintiff, was seventy-eight years of age, possessed of all his faculties, and engaged in the jewelry business at Downing, having his business in the drug store of his brother-in-law, James Taylor. The town of Downing is divided into two sections by the railroad tracks, the business part being north thereof and the residence section chiefly on the south side, thus making it necessary for persons living on the south side to cross the tracks in going to and from the business section. The railroad company owns the land upon which the tracks and station are maintained. It appears the switch track is north of and parallel to the main line track; west of the station a street known as Fifteenth street crosses the said tracks at right angles. On the east side of this street is maintained a cement sidewalk, running north and south, which the evidence shows was in a good state of repair at the time of the injury in suit.

On December 10, 1929, the Penrod, Jurden & Clark Company was engaged in loading logs on flat cars. These cars were placed, or spotted, on the switch track and east of Fifteenth street, which is sixty feet in width. The apparatus for loading the logs consisted of an upright gin pole set up by the side of the car and held in place by a guy wire or cable. There was a pulley attachment and a block and tackle at the side of the gin pole, used in the process of lifting the logs. A cable connected with this apparatus ran across the sidewalk just mentioned to the west side of Fifteenth street and attached to an automobile truck. The cable would be lowered and attached to the log by means of a grab hook, and the truck moving backward would raise the log to a proper height to be loaded on the car, the cable operating across the sidewalk. The testimony shows decedent had lived in Downing about five years and that his yearly income from his business amounted approximately to $1500. His family consisted of his wife (plaintiff herein) and a daughter, Luella, about sixteen years of age. The family lived south of the railroad right of way and decedent used the sidewalk in question daily in going to and from his place of business.

On December 10, 1929, decedent started to his home from his store, at about 12 o'clock noon, traveling along the sidewalk in question, going south, looking "sideways" at the man on the car and observing the operation of loading the logs. When he reached a point about six feet north of the north rail of the switch track, at the point where the cable crossed the sidewalk, he fell, landing on his hands and knees and tilting over on his nose. The evidence discloses that when the cable was attached to a log and the truck pulling thereat the tension raised the cable from eight to twelve inches above the surface of the sidewalk. There was mud on the cable and on the walk at the point where decedent fell. He fell on the north side of the cable and some packages he had been carrying were found on the south side thereof. The direct testimony is not clear as to whether the truck was standing still at the time decedent fell or whether the cable was taut at the time. One witness testified: "I stood there and was watching them load logs. I never noticed anything across the sidewalk. I saw him fall. At the time I did not notice anything he fell over. The first I noticed he fell on his face and head and was trying to get up." Another that decedent — "passed me and started across the crossing and the truck was back north and the cable across the sidewalk, and he caught his toe and fell down. He went on his hands and knees and then tilted over on his nose. "Q. What was he doing? A. He was looking sideways, looking at the man on the car." Another witness testified that he saw the cable across the sidewalk after decedent fell and that he did not think that there was anything else across it.

O.H. Sears, in charge of loading the logs for Penrod, Jurden & Clark Company, was operating the truck and seated therein when the accident occurred, saw decedent fall and immediately ran to him, assisted him to his feet, brushed the mud and dirt from his clothing and went with him to Mr. Taylor's drug store. Sears testified that he "had view of the entire sidewalk on the east side" of the street. He further testified:

"Q. You saw Mr. Wertz when he was thirty or forty feet north of the cable? A. I saw men coming all the time. I didn't know Mr. Wertz.

"Q. You saw a man coming and then you saw him fall. Do you recall it was the man that was coming? A. I couldn't say. There were usually men standing around there watching us load logs."

A Dr. Gerwig was called and Sears went with decedent to the doctor's office, stayed there throughout the afternoon and assisted in taking the injured man to his home about six o'clock P.M. of that day. He then left for a short time but returned and remained until Mr. Wertz died, about 8:30 P.M. the same day. It is in evidence that Mr. Wertz's daughter, Luella, and Mr. Sears were the first to reach him after the accident, at which time decedent was bleeding profusely at the nose and mouth and had a handkerchief over his face; Mr. Sears testified he looked broken down and that his hands were swollen. The testimony shows Dr. Gerwig cleaned him up and packed his nose with gauze, using adrenalin in an attempt to stop the hemorrhage. About an hour thereafter, the doctor gave him a serum and another about twenty to twenty-five minutes later. He also administered morphine and strophine, hypodermically, and then the two shots of serum above mentioned and, later, another hypodermic. Decedent was conscious when taken to his home and until, perhaps, forty-five minutes after the last shot of serum. It is in evidence that Dr. Gerwig treated decedent about two years previously for hemorrhage of the nose, but the bleeding at that time was checked without much difficulty.

The amended petition, upon which the cause was tried, alleges the necessary formal matters and charges negligence, as follows:

"That on the said 10th day of December, 1929, the defendant Penrod, Jurden & Clark Company was engaged at said place in loading said logs in the aforesaid manner, and then and there negligently, carelessly and wrongfully caused the aforesaid cable to be drawn across the aforesaid sidewalk, obstructing the free and safe use of the same as a sidewalk, and making the same dangerous for use by the public. That defendant Chicago, Burlington & Quincy Railroad Company permitted its codefendant to place its said logs for loading at the aforesaid place, and permitted it to loan the said logs at said place when said defendant Chicago, Burlington & Quincy Railroad Company knew that its codefendant in so loading said logs at said place would obstruct the said sidewalk in the manner hereinbefore stated. That on the said 10th day of December, 1929, the defendant Chicago, Burlington & Quincy Railroad Company knew that the said cable was drawn across the aforesaid sidewalk for use of the public and caused it to be dangerous and unsafe for use of the public and pedestrians who might be passing over said sidewalk, but negligently and carelessly permitted its codefendant to so obstruct the same and make it dangerous and unsafe for travel... . and while the defendant Penrod, Jurden & Clark Company was so engaged in loading said logs and while it had the aforesaid cable so drawn across said sidewalk, and while defendant Chicago, Burlington & Quincy Railroad Company so knew of the acts of its codefendant, plaintiff's husband,...