White v. Missouri Pacific Railway Co.

• Decision Date: 04 December 1911
• Citation: White v. Missouri Pacific Railway Co., 141 S.W. 436, 159 Mo.App. 508 (Kan. App. 1911)
• Parties: ANNA WHITE, Respondent, v. MISSOURI PACIFIC RAILWAY CO., Appellant
• Court: Kansas Court of Appeals

141 S.W. 436

159 Mo.App. 508

ANNA WHITE, Respondent, v. MISSOURI PACIFIC RAILWAY CO., Appellant

Court of Appeals of Missouri, Kansas City

December 4, 1911

Appeal from Cole Circuit Court.--Hon. Wm. H. Martin, Judge.

REVERSED.

Judgment reversed.

C. D Corum for appellant.

The demurrer to the evidence offered by the defendant at the close of the evidence should have been sustained. Magee v. Railroad, 214 Mo. 542; King v. Railroad, 211 Mo. 14; Hawkins v. Railroad, 135 Mo.App. 527; Matz v. Railroad, 127 Mo. 298; Day v Railroad, 140 Mo.App. 469; Markowitz v Railroad, 186 Mo. 359; Young v. Railroad, 227 Mo. 331; Degonia v. Railroad, 224 Mo. 564; Sinclair v. Railroad, 133 Mo. 244; Van Dyke v. Railroad; Matthews v. Metropolitan Ry., 137 S.W. 1004; Donahue v. Kelly, 181 Pa. St. 93; Brown v. French, 104 Pa. St. 64; Floyd v. Railroad, 162 Pa. 29; Sekerek v. Jeuett, 153 Pa. St. 117.

A. W. Walker and Silver & Dumm for respondent.

The demurrer to the evidence offered by plaintiff was properly overruled. Plaintiff's evidence was substantial and made a clear case for the jury. Hinzeman v. Railroad, 199 Mo. 56; Atkins v. Railroad, 152 Mo.App. 291; Williamson v. Railroad, 139 Mo.App. 481 (same case, second appeal), 137 S.W. 30; Morgan v. Railroad, 159 Mo. 292; Murphy v. Railroad, 228 Mo. 56; Eppstein v. Railroad, 197 Mo. 720; Reyburn v. Railroad, 187 Mo. 565.

OPINION

ELLISON, J.

Plaintiff's deceased husband was an employee of the defendant as a brakeman on a freight train. He was killed by one of defendant's engines while out as a flagman, and plaintiff, charging his death to defendant's negligence, brought this action and recovered judgment in the trial court.

Deceased and his crew had been ordered to assist in clearing away a wreck at a station called Etlah. This had been about accomplished when the conductor, who was at the station with deceased, ordered him to go eastwardly down the track to flag an expected west-bound passenger train. He started to his post. Shortly after this a local east-bound freight train came in from the west and stopped at Etlah, at near two o'clock p. m., when it was concluded that there was time to run east about three miles to another small station and get in on a side track before the expected west-bound passenger train would get there. The train then started up for that short run at a rapid speed, stated to have been at the rate of thirty-five or forty miles per hour. The bluffs come close to the river and the railway track follows them, thereby making several curves. This local freight had not gone far in its eastwardly run until it came upon deceased sitting asleep on one of the rails of the track, with his head inclining forward on his breast, his legs inside the rails, and his flag across his arm, rolled up.

Immediately on seeing him the engineer shut off steam, set the air brakes and opened the sand boxes, and by the time he had done that the engine was upon deceased and he was injured so that he shortly died. The train came to a stop three hundred feet further on. No one saw the accident but the engineer and he fixes the distance positively between the point of the bluffs where he could first see deceased, and where the latter sat in the track, at two hundred and seventy-five feet. He took an engine and some person to help him and went to the place. He put a man on the rail where deceased sat and then went with his engine back to the point where the man could be first seen and this distance was measured.

Plaintiff also had a measurement taken, but without the aid of an engine, which was stated to be three hundred and twenty-five feet. But this is well accounted for by the engineer showing that a seat up ten or twelve feet in the cab of the engine, where he sat, would be more obstructed on account of the formation of the bluff than would a view from the ground. In other words, that one could see further along the track from the ground than he could from the engine cab.

Then plaintiff relies upon another part of the evidence as tending to contradict the engineer on distances. To show that deceased was not so far down the track, by several hundred feet, as the engineer placed him, a section foreman was introduced by plaintiff, who stated that at eight o'clock that morning (near six hours before the accident occurred), he had seen deceased flagging at a certain place, and that the next morning thereafter he saw a cap at the same place, close by the track, which he thought, indeed felt sure, was the one he saw deceased wearing the morning before. This place was located by the witness in such way as to be wholly unintelligible. He attempted to make known where it was by a milepost, a mileboard, a whistling board, a whistling post, and a telegraph pole with the miles marked on it, and these he used interchangeably until, as best we can gather from reading it, the court, counsel and the witness himself became confused with his tangling statements. The mileboard and the milepost and the whistling board seem to be different objects. The mile posts, he said, were 150 feet apart.

After the witness mixed matters past our comprehension, viewing them in print, the trial court suggested to him that he could not understand, and questions were then put to make things clearer. So it was asked him: "What is the distance between the milepost and the whistling board?" At this point (to show how he was understood), a lawyer broke in with the statement: "He says about seven hundred feet." Another lawyer said: "That is not what I understood him to say." Yet another adds that: "He said five or six telegraph posts." And then the court stated: "I think he is confused." Then this follows:

"Q. That is, it is a half mile between the whistling post--A. And the whistling board.

"Q. That is, in other words, the west pole? A. Yes, sir.

"Q. And going on east, why the first you come to is the whistling board? A. The whistling board.

"Q. The whistling board or whistling post? A. The whistling board,--the mileboard.

By the Court: "That is what you call the mileboard? A. The mileboard; yes, sir.

"Q. Now, then, you come to that first? A. Going east you come to the milepost 70, first.

"Q. That is what I say, going east you come to milepost 70? A. Yes, sir.

"Q. And the next thing you come to is the whistling board. A. The mileboard; yes, sir.

"Q. The mileboard?"

At this point another lawyer, silent up to this part of the examination, stated what the witness meant. Then the witness was asked, "Now with reference to that (the mileboard) where did you find that cap? A. Well, about something like, I think, about five or six poles, or seven or something like that." This, he said, was about seven hundred feet west of the mileboard. Upon such confused statements it is sought to base measurements of distances in which the engineer could have seen deceased on the track, and to contradict the engineer.

But if we allow to this witness's testimony the understanding placed upon it by plaintiff's counsel in argument, it is this: That deceased was seen on the track in the morning about six hours before the accident, engaged in flagging; and nearby this place the witness found a cap the next day which he thought was the one worn by deceased when he saw him the day before. How does that show, or reasonably tend to show that deceased was not at another part of the track, a short distance away, at another time, where the definite testimony of the engineer placed him? It is an attempt by mere conjecture to overturn definite and positive testimony given by persons who had affirmative knowledge. We think none of it is inconsistent with the evidence plaintiff sought to...