Whiteaker v. Missouri Pac. R. Co.
| Decision Date | 30 March 1929 |
| Docket Number | No. 4566.,4566. |
| Citation | 15 S.W.2d 952 |
| Parties | WHITEAKER v. MISSOURI PAC. R. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Chas. L. Ferguson, Judge.
Action by Mabel Whiteaker against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Thomas J. Cole and Arnot L. Sheppard, both of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.
Cope & Tedrick, of Poplar Bluff, for respondent.
Action for damages for the death of plaintiff's husband, Cleveland Whiteaker. Plaintiff recovered, and defendant appealed.
The chief complaint on this appeal is the failure of the trial court to sustain a demurrer to the evidence.
Deceased was run over by two engines of defendant between 8 and 9 o'clock on the night of October 29, 1927, and his mangled body was found on the track immediately thereafter. The evidence was sufficient to show that his death was caused by his being struck by these engines. One of these engines was described as a 400 engine, which was a small engine, and the other as a 5300 engine, which was a large engine. They were moving backward, the small engine being pushed by the large engine. They were moving toward the east on a Y track on the south side of the city of Poplar Bluff. The track was nearly straight and on level ground. The ballast between the rails and on the sides was of white chat or crushed stone. The night was a starlight night, which means that the sky was clear but no moon shining. The large engine had a light on its west end which would throw no light upon the track to the east of the engine, the direction in which they were moving. One man stood on the running board of the small engine at the east end thereof with a lantern in his hand, but whether this lantern would throw light on the track to the east, the direction in which the engines were moving, is not clearly shown. One witness testified he did not think it could be of any aid. When the engines stopped and the man with the lantern got off to throw a switch, he remarked that he thought they had run over something. The parties on the engines then went back to look, and found the mangled body of plaintiff's deceased husband on the track about 100 or 150 feet back of where the engines stopped.
The defendant offered no evidence, but stood on its demurrer to plaintiff's evidence.
Without detailing the evidence as to the use of the track at the place of the accident by pedestrians, we may say that it was sufficient to take to the jury the question of such use by pedestrians in such numbers and for such length of time during both day and night as to place upon defendant the duty to keep a lookout for persons on the track, and does not, therefore, show that upon this occasion defendant had the right to expect a clear track.
As to the movements and conduct of deceased prior to the accident, the plaintiff's evidence is in substance as follows: Some time in the afternoon he stopped at a residence near the place of the accident slightly under the influence of intoxicating liquor but able to care for himself. He stepped through a hole in the floor of the back porch of this residence and fell against a stove and received a severe cut on the head which bled profusely. Between 4 and 5 o'clock p. m. he left this house and walked down by the railroad track and sat down on the end of a pile of mine props some 8 or 10 feet from the railroad track. Parties from the house went down to him and tried to induce him to go home, but he said he did not feel like going home then, and these parties left him sitting there on the mine props at that time, and no witness saw him any more until after he was killed. No one saw the accident, and all that the evidence shows in relation to it must be gathered from the physical facts shown by the evidence.
It is earnestly insisted by appellant that the deceased was guilty of contributory negligence as a matter of law and, for that reason the demurrer to the evidence should have been sustained. On that question we are confronted with this situation. No one saw the accident, hence no witness could relate how it occurred. Under such circumstances, the presumption is indulged that the deceased was in the exercise of due care. That rule, stated in that general way, is familiar law and needs no citation of authorities to sustain it; but when it is to be applied in a particular case, what does it mean? It has been said that "negligence is the absence of due care and due care is a care adjusting itself to the circumstances of the case." Dean v. R. R., 199 Mo. 386, 408, 97 S. W. 910, 917; Flannagan v. St. Louis-San Francisco Ry. Co. (Mo. App.) 297 S. W. 463, 467.
We think that when applied to a given case, the presumption of due care means that whatever facts a party would have to prove in order to show due care, if the burden were on him to show it, are taken as true without any proof being offered. If the burden were placed upon plaintiff in this case to prove that her husband was in the exercise of due care at the time he was struck by the engine of defendant, she would have to prove that he did not step upon the track of defendant immediately in front of the moving engines and did not attempt to walk upon the track in front of them without looking to see if he would be in danger by walking upon the track. The presumption of due care on his part, then, means that, prima facie, he did neither of those things, and if he is to be held to have been guilty of contributory negligence, this prima facie showing of due care resulting from the presumption in his or plaintiff's favor must be overcome by evidence. As already stated, the only evidence touching that question is evidence showing the physical facts existing at the time of the accident. On that question we have the following: About 4:30 or 5 o'clock in the evening the plaintiff's husband was sitting on a pile of mine props about 8 or 10 feet from defendant's track bleeding from a wound in the head which he had previously received by a fall against a stove. He was seen no more until after he was killed between 8 and 9 o'clock of the same evening. But there was evidence that from the place where he was last seen sitting, a trail of blood led to the railroad track in a slightly northeasterly direction, and from there eastward the blood on the track and the condition of the ground indicated that his body had been dragged from that point along the track some 25 to 30 feet. The evidence showing these facts is found in the testimony of witnesses for plaintiff. Defendant offered no testimony. John A. Eddings testified as follows: On cross-examination he said:
A Mr. Hebling testified:
On redirect examination:
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