Citation Numbers: 216 Mo. App. 21
Judges: Allen, Becher, Daues
Filed Date: 11/5/1924
Status: Precedential
Modified Date: 10/16/2022
This action is brought by plaintiffs, the parents of an unmarried minor son seventeen years of age, to recover from the railroad company the statutory penalty for causing the death of said son on June 7, 1923. The suit was instituted in Butler county, and upon application of defendant the venue was changed to the Cape Girardeau Court of Common Pleas in Cape Girardeau county. The trial resulted in a judgment in favor of plaintiffs for $3500, from which the defendant appeals.
The negligence charged in the petition, and upon which the case went to the jury, is that the defendant negligently and carelessly ran its train over this boy while he was on a public crossing, in the night time, and while running at a high and dangerous rate of speed without keeping the electric headlight on the locomotive lighted, and, secondly, in failing to give any signal of the approach of the train by sounding a whistle or ringing a bell eighty rods from the public crossing, as required by statute.
The answer is a general denial.
It becomes of importance to note the location of the homes of two of the witnesses. It appears that slightly over a half mile south of this crossing, east of the railroad and within fifty or sixty feet of the right of way, is located the residence of Henry Kent, and witness John Roberts resides a mile and a half south of the crossing and a quarter of a mile east of the railroad. On June 6, 1923, the deceased and another boy of about the same age, one Grimes, had gone to the town of Neelyville, where they remained until midnight. A storm approached that vicinity, which was so severe as to arouse the entire neighborhood. The boys started home, and both were found dead the next morning at Berry crossing.
Defendant ran a train over this point after midnight of this day, which was a passenger train known as number six. It appears that the Berry crossing was reached by this train at 12:53 A. M., June 7, 1923, and was then running at a rate of speed of fifty-five miles an hour. When the train reached Popular Bluff, further north, by reason of a peculiar odor, the engineer and fireman were attracted to make an examination to see if they had not run over something, and found upon the pilot of the engine blood and tissue, indicating that they had struck some live creature. Another employee of defendant looked at the engine and saw blood and brain substance scattered upon it.
There is another dirt road besides the Berry road leading from Neelyville south, and east of the home of
Witness Kent,-together with his wife, testifying for plaintiffs, stated that they were up, being fearful of the storm, and that they saw the train pass their door. They said they were so located that they could observe the passenger train as it passed their house and approached the crossing. Kent testified that he stood a few feet from the right of way fence and had before him an unobstructed view of the track to the Berry crossing. Mrs. Kent was standing on the porch, which was fifty or sixty feet from the right of way, and her view was also unobstructed, although she could not see up the track quite so far as could Kent. Each testified that when this train approached they were struck with the fact, and clearly observed, that it was a passenger train traveling at an unusual rate of speed with no illuminating headlight on the front of the locomotive;
“Q. Prom the time that the train passed you, was there a reflection of a headlight at any time between when it passed you and when it passed over this road crossing? A. If there was I didn’t see it.
“Q. Could you have seen it? A. Yes, absolutely could.
“Q. And you say there was not? A. There was not,”
It is in evidence that the reflection from a headlight on this kind of a train can be seen from the side of the track for probably a mile and a half, and if in looking at the light it is on a straight line one can see same for five or six miles. It is also in evidence that one standing where Kent stood on this occasion could see the light thrown from the headlight of a passing train at least as far north as the Berry crossing.
Witness John Roberts testified that he saw the train about a half mile south of the crossing, and that the light was not then burning on same.
Witness Thomas Dowdy testified that the light was not burning when the train passed him a half mile south of the crossing.
The defendant produced the engineer, who stated that he sounded the signal crossing at the whistling post eighty rods south of Berry crossing, and the fireman, while not positively, in effect corroborated this. The wind was blowing from the north or northwest.
Plaintiffs’ witnesses, however, one after another, testified that they did not hear any sound or signal from whistle or bell from this locomotive on this occasion, and these witnesses, all having good hearing, probably were not in as good a position to hear such signal because of the wind coming from the northwest, yet they say they were close enough to hear the signal had a signal been sounded. Kent and his wife were south of the point where the whistle is to be sounded, and the wind was blowing from the northwest. Kent testified for plaintiff that had a signal been sounded, by bell or whistle, at this crossing he would have heard it, but that he heard no such warning. Likewise was the testimony of Mrs. Kent.
Witness Dowdy testified that he was about a half mile from the whistling post when the train passed, and that he was in a position to hear a signal had there been one sounded, but that he heard no such signal.
This very succinctly recites the proof most favorable to plaintiffs, and we must examine plaintiffs’ evi-' dense under such rule when considering the first assignment of error, to-wit, that the demurrer to the evidence should have been sustained.
We think the court correctly ruled the demurrer to the evidence. We have carefully considered the argu
The next question raised by defendant relates to plaintiffs ’ instruction number 4, which is as follows:
“The court instructs the jury, that if you find for plaintiffs then you should assess against the defendant as a penalty a sum not less than $2000, nor more than $10,000 in the discretion of the jury, and in determining the amount, you may take into consideration the facts constituting the negligence, if any, on the part of defendant, causing the death of said Samuel Bass Barrett, including the aggravating or mitigating crcumstances, if any, attending such negligence as is shown by the evidence. ’ ’
The direct question is whether under the pleadings and the evidence the instruction with reference to the consideration of any aggravatng circumstances should have been given. This question is discussed in Grier v. Railroad, 286 Mo. 523, 228 S. W. 454, and more recently in Bloomkamp v. Railroad, — Mo. App. —, 236 S. W. 388. [See also Treadway v. Railroad, — Mo. —, 253 S. W. 1037.]
Finally, defendant asks a reversal because counsel for plaintiffs in his closing argument referred to the mangled condition of the boy and the tearing out of the entrails of the dead boy in connection with his argument of aggravating circumstances in the case. The court refused to rebuke plaintiffs’ counsel, and of this complaint is now made. While the argument may be deemed somewhat objectionable, we do not believe it works a reversal of the judgment. The verdict is for $3500, the boy was seventeen years old when killed, and in view of all the facts and circumstances attendant, we believe that this judgment stands for affirmance. It is so ordered.