Wilkerson v. St. Louis & S. F. R. Co.

• Decision Date: 10 January 1910
• Citation: 140 Mo. App. 306,124 S.W. 543
• Parties: WILKERSON v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

124 S.W. 543

140 Mo. App. 306

WILKERSON v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

January 10, 1910.

1. MASTER AND SERVANT (§ 279) — INJURY TO SERVANT — LIABILITY.

The liability of a railroad under Rev. St. 1899, § 2864, as amended by Laws 1905, p. 136, § 1 (Ann. St. 1906, p. 1637), for the death of a servant through the negligence of a servant while running any train, is founded on negligence in operating a train, and the negligence is to be established by proof, and where, on a consideration of the facts giving plaintiff the most favorable interpretation that they will allow of, negligence is not affirmatively shown, there can be no recovery.

2. NEGLIGENCE (§ 1) — ACTIONABLE NEGLIGENCE.

The test of negligence is: Did the human agent in charge of the instrumentality causing the injury complained of act with the care that an ordinarily prudent person under the same circumstances would have exercised, and, if he did, there is no actionable negligence.

3. NEGLIGENCE (§ 83) — HUMANITARIAN DOCTRINE.

Where a defendant or its servants before an accident discovered, or by the exercise of ordinary care might have discovered, plaintiff's perilous position, and then neglected to use the means at their command to prevent the injury when the use of such means would have prevented the accident, the defendant is liable.

4. MASTER AND SERVANT (§ 137) — INJURY TO SERVANT — NEGLIGENCE.

Trainmen may presume that flagmen and other employés, on or near the track, will keep out of danger, and the railroad is not liable for an injury to them unless the trainmen have good reason to believe that the employés will not keep out of danger, and then fail to use proper means at their command to prevent injuring them.

5. MASTER AND SERVANT (§ 137) — INJURY TO SERVANT — NEGLIGENCE.

Unless the evidence, in an action for the death of a flagman struck by a train because of the failure of the engineer to stop the train after the discovery of decedent's peril, showed that the engineer saw decedent, or by the exercise of ordinary care could have seen him, in time to have avoided the accident, there could be no recovery.

6. MASTER AND SERVANT (§ 278) — INJURY TO SERVANT — NEGLIGENCE.

Where, in an action for the death of a flagman struck by a train because of the failure of the engineer to stop the train after the discovery of decedent's peril, there was no evidence as to when decedent went on the track, or how long he had been on it before he was struck, there was no evidence which justified the conclusion that the engineer saw him, or could have seen him, in time to have prevented the accident, and there could be no recovery.

7. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — NEGLIGENCE.

Where, in an action for the death of a flagman struck by a train, the facts failed to point to the negligence of the railroad as the proximate cause of the injury, but revealed a state of facts from which an inference could as reasonably be drawn that the accident was due to a cause other than the negligence of the railroad, the railroad need not explain the cause of the accident to defeat a recovery; the doctrine of res ipsa loquitur not applying.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by W. W. Wilkerson, administrator of Ezra Moore, deceased, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action commenced in the Christian county circuit court and tried before a jury. The material part of the petition, after alleging the death of Ezra Moore and the appointment of respondent as administrator, is as follows: "That the deceased was a brakeman on one of the freight trains of appellant running from Springfield to Thayer, Mo.; that deceased was killed by the operation of another train of the appellant at or near Norwood, Mo., on the 18th of August, 1907; that the deceased was ordered by the conductor of the train upon which he was working to walk east from Norwood on the tracks of appellant's road for the purpose of signaling and flagging trains approaching Norwood; that the deceased walked upon and along the appellant's tracks for a reasonable distance with signal lights and placed torpedoes on the track in different places, and afterwards walked back west on the tracks of appellant's road to a point where the track was level and straight from the east for over a quarter of a mile; that while displaying his signal light the deceased was run over and killed by a train of appellant, No. 706, which was approaching Norwood station from the east."

Specifying appellant's negligence, the petition continues: "That the killing of plaintiff's intestate was the direct result of the negligent, careless, and reckless manner in which the train was run, managed, and controlled by defendant's agents, servants, and employés, in this: That after defendant's employés in charge of and operating said train saw, or by the exercise of reasonable care and diligence, had they not been reckless in operating said train, could have, seen the dangerous position in which the plaintiff's intestate, Ezra Moore, was situated, and seeing or by the exercise of reasonable care and diligence, if said train had not been recklessly operated by defendant's agents, servants and employés in charge of said train, could have seen, the imminent peril in which plaintiff's intestate was placed, and that the deceased was unaware of the near and dangerous approach of said train, and that the agents, servants, and employés in charge of said train negligently and carelessly failed to sound an ordinary whistle in time to avoid the injury herein complained of, and, in fact, did not at any time before the injury to and death of plaintiff's intestate, either ring the bell, sound the whistle, or give any other signal by which plaintiff's intestate might be warned of the near and dangerous approach of said train; and negligently failed and neglected to use the brakes or other appliances for stopping said train, and negligently failed to use the appliances provided for and at hand of putting said train under control and stopping the same before it struck and killed plaintiff's intestate, but, on the contrary therefore, recklessly and negligently run its said train against the plaintiff's intestate without recognizing the torpedo signals which were run over and discharged before striking plaintiff's intestate, and without recognizing or applying the signal lights displayed by him, and without keeping any lookout whatever, the same train being so made up that the tender was in front of said engine and caboose behind the same, and there being no light whatever on said tender, and said train being run at a high, dangerous, and reckless rate of speed, by reason of all of which plaintiff's intestate was run over," etc.

The answer was a general denial.

The alleged cause of action is of that class denominated "death from wrongful act," and is brought under the provisions of section 2864, Rev. St. 1899, amended by Laws 1905, p. 136, § 1 (Ann. St. 1906, p. 1637), which provides that whenever any person, including an employé of a corporation, is killed by the negligence of a co-employé, or shall die from any injury occasioned from the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employé while running, managing, or conducting any locomotive or train of cars, etc., the corporation employing such person shall pay a penalty in the sum of not less than $2,000 and not to exceed $10,000, in the discretion of the jury.

The record discloses that the deceased was in the employ of the defendant company as a brakeman, running from Springfield to Thayer, and that he had been in the service only five weeks. On the afternoon of the 17th day of August, 1907, he, together with the other members of the train crew, ran their train to Norwood, in Wright county, Mo., where a collision occurred blocking the three tracks of the defendant's railroad at that place. The accident was reported to a dispatcher of the defendant company, who ordered a train back from Cabool — about 19 miles east of Norwood — to assist in clearing the tracks. This train was in charge of Conductor A. M. Bibee, Engineer J. A. M. Cadle, and a fireman, and consisted of an engine, tender, and caboose. The engine was reversed, running backward, with the tender in front, and was going at the rate of about 22 miles an hour. It was 4 or 5 o'clock in the morning, and the weather was damp and foggy, and it was dark. The deceased, as stated, was a brakeman on the wrecked train at Norwood of which J. W. Edwards was the conductor. The only evidence as to negligence introduced in the case was that offered by the plaintiff, consisting of the testimony of J. W. Edwards, conductor of the wrecked train at Norwood, J. A. M. Cadle, engineer of the relief train from Cabool, and A. M. Bibee, conductor of the relief train. At the conclusion of plaintiff's testimony, the defendant offered a demurrer to the evidence, which was by the court overruled, and defendant introduced no evidence whatever. Plaintiff obtained judgment for $2,500, from which defendant has perfected its appeal.

The evidence discloses this state of facts: The train on which deceased was a brakeman was wrecked at Norwood, thereby blocking the three tracks at that place. For the purpose of clearing these tracks, a dispatcher of the defendant company ordered the return of a freight locomotive from the town of Cabool, a station 19 miles southeast of Norwood on the same line of defendant's railroad. The conductor of the wrecked train at Norwood ordered the deceased, Ezra Moore, to go out and flag this extra train that was coming on from Cabool to remove the wreck. This order was given between 4 and 5 o'clock in the morning before daylight. The deceased took with him a red and a white lantern, and went east to flag the train, and was not...