Gumm v. Kansas City Belt Ry. Co.

• Citation: 125 S.W. 796,141 Mo.App. 306
• Parties: WM. GUMM, Respondent, v. THE KANSAS CITY BELT RAILWAY COMPANY, Appellant
• Decision Date: 07 February 1910
• Court: Court of Appeals of Kansas

125 S.W. 796

141 Mo.App. 306

WM. GUMM, Respondent, v. THE KANSAS CITY BELT RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1910

Appeal from Jackson Circuit Court.--Hon. Edw. P. Gates, Judge.

Judgment reversed and cause remanded.

Lathrop Morrow, Fox & Moore, Cyrus Crane and Geo. J. Mersereau for appellant.

(1) Plaintiff was guilty of contributory negligence as a matter of law. Payne v. Railroad, 136 Mo. 562; Kreis v Railroad, 148 Mo. 321; Sanguinette v. Railroad, 196 Mo. 466; Hook v. Railroad, 162 Mo. 569; Schaub v. Railroad, 133 Mo.App. 444. (2) The plaintiff's instruction numbered 1 given at the request of plaintiff is erroneous. Culbertson v. Railroad, 140 Mo. 35; Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Rapp v Railroad, 106 Mo. 423; Anderson v. Railroad, 196 Mo. 442. (3) The court erred in the admission of incompetent testimony. McGee v. Railroad, supra; Grout v. Railroad, supra.

Ben. T. Hardin for respondent.

(1) The court committed no error in refusing to take the case from the jury; the question as to negligence of the deceased contributing to her own injury was properly left to the jury to decide. The rule is that the evidence must be all one way, showing that deceased was guilty of negligence which was the proximate cause of the injury, and that the railroad company is not itself guilty of negligence contributing to the injury, before the court is warranted in taking the case from the jury. Powers v. Transit Co., 202 Mo. 280, and cases there cited; Johnson v. Railroad, 203 Mo. 382; Gibler v. Railroad, 203 Mo. 208; Eppstein v. Railroad, 197 Mo. 720; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Murrell v. Railroad, 105 Mo.App. 88; Meng v. Railroad, 108 Mo.App. 553; Reed v. Railroad, 107 Mo.App. 238; Lynch v. Railroad, 208 Mo. 21; Murphy v. Railroad, 122 S.W. 334; Waddell v. Railroad, 213 Mo. 16. (2) And in the absence of evidence to the contrary, the law presumes that Mrs. Gumm used ordinary care, and looked for the oncoming train, and had the right to assume that it was running at a rate of speed within the limit prescribed by the ordinance. Powers v. Railroad, 202 Mo. 280; Stotler v. Railroad, 200 Mo. 146; Eckhard v. Transit Co., 190 Mo. 613; Riska v. Railroad, 180 Mo. 188; Weller v. Railroad, 164 Mo. 198; Crumpley v. Railroad, 111 Mo. 152; Murrell v. Railroad, 105 Mo.App. 97.

OPINION

JOHNSON, J.

Plaintiff sued to recover damages for the death of his wife which he alleges was caused by the negligence of defendant. A trial resulted in a verdict and judgment for plaintiff in the sum of $ 5,000. An appeal was allowed defendant to the Supreme Court, but the case was afterward transferred to this court under the recent Act of the Legislature increasing the jurisdiction of the Courts of Appeals.

The death of Mrs. Gumm occurred in the morning of July 20, 1904, at the intersection of Twentieth and Locust streets, public streets in Kansas City. The tracks of defendant's railroad--three in number--run east and west and cross Locust street at its intersection with Twentieth street. To the east of Locust street (the course of which is north and south), the tracks run straight a distance of 432 feet and then curve to a southeasterly course. Mrs. Gumm lived on Locust street, a short distance south of the railroad tracks. She was sixty-two years old, well preserved and vigorous. Her hearing was acute and her eyesight so good that she did not use glasses even for reading. She had gone on some errand to a place several blocks north of the railroad and was returning home when death overtook her. She had walked south on the sidewalk on the east side of Locust street until she reached the railroad crossing. There she stopped to await the passage over the crossing of an east-bound freight train which was running on the south track. The point where she stopped was at or very near a lamp post which stood a few feet north of the north railroad track, and about twenty-five feet from the middle track, which was the main line used by west-bound trains. As the rear end of the freight train began to clear the crossing, she started forward at an ordinary gait and proceeded to a point near the north rail of the middle track, when she was struck by the end of the pilot beam of a west-bound engine, and hurled across Locust street, where she fell to the north of the track.

The engine, drawing a passenger train, was running twenty to twenty-five miles per hour and approached the crossing without ringing the bell. There is evidence that the whistle was blown for a street crossing several blocks to the east but the weight of plaintiff's evidence sustains the contention that no warning of the approaching train was given by bell or whistle. Just as the engine struck the unfortunate woman, the whistle emitted a prolonged shriek, but the warning came too late. No watchman was stationed at this crossing, though the ordinances of the city, introduced in evidence, required defendant to maintain a watchman there. Another ordinance forbade the running of trains over this crossing at a greater speed than six miles per hour.

While Mrs. Gumm was standing at the lamp post, and during her progress to the point of collision, there was nothing to obstruct her view to the east. Had she looked, she could have seen the engine which could not have been more than two hundred feet from the east line of Locust street when she started to go over the crossing. There is evidence that the east-bound freight engine was emitting quite a volume of smoke, but even when considered in the light most favorable to the cause of action, the evidence does not justify a reasonable inference that the approach of the passenger engine was appreciably obscured by this smoke. There was nothing in the appearance of the woman that suggested to the witnesses who observed her that unconsciously she was going to her death. A milkman who knew her saw her standing at the lamp post with her back to the north and her face turned southward. He was some distance north of her and, of course, could not observe what was engaging her attention. On direct examination, he testified, in part:

"Now, Mr. Negus, I will ask you to state, if you can, to the jury, whether the woman was looking to the south, or east, or west, at the time she was standing in the place you have indicated. A. My idea is she was looking east.

"Mr. Crane: I move that the answer of the witness be stricken out, it being his idea about it.

"The Court: The motion is sustained and the jury will disregard entirely the statement of the witness, that his idea (was) she was looking east. State if you know. . . .

"Q. Now, Mr. Negus, the woman was standing, as you have testified, by the lamp post, with her back to the north. I will ask you to state to the jury in what direction she was looking. A. I will state to the jury, it was pretty hard for a man to tell which way she was looking. She had a shaker on, and it is pretty hard work for me to tell which way she was looking. I would not be able to tell just which way she as looking.

"Q. She was standing still, at the time, was she? A. Yes, sir.

"Q. Now, then, from where you were standing, did you have a view of the Belt Line tracks east of the crossing? A. Yes, sir. . . .

"Q. From the point where Mrs. Gumm was standing, could a person have a good view of the Belt Line tracks east? A. Yes, sir.

"Q. What was on the Belt Line tracks there at that moment, with reference to trains; that is, east, I mean? A. There was a freight train going east on the side track.

"Q. Which track was that on,--the north track or the south track? A. On the south track. . . .

"Q. The Court: Just describe what happened, in your own language,--what you saw done and what happened, beginning with Mrs. Gumm standing there. A. When the freight train cleared the crossing, Mrs. Gumm started across, and a passenger train came down onto her and hit her."

On cross-examination:

"Q. And you say she had a shaker on her head? A. Yes, sir.

"Q. By that you mean a large sunbonnet? A. Yes, sir.

"By the Court: With closed sides? A. Yes, sir.

"Q. By Mr. Crane: Like the closed sides of a buggy? A. Yes, sir.

"Q. With no perforated slits down the sides--just a closed sunbonnet? A. The ordinary sunbonnet.

"Q. I supposed from your calling it a shaker, that you meant one of those good big ones. A. The ordinary ones.

"Q. Don't you make a distinction between the ordinary sunbonnet and the shaker you spoke about? A. No sir.

"Q. Well, she stood there with her sunbonnet on, under the lamp post, and when this freight train got nearly off the track, she started to walk south? A. Yes, sir.

"Q. And you still kept looking at her? A. Yes, sir.

"Q. And you saw this train come around the bend from the east? A. Yes, sir.

"Q. And as she walked south there, there was nothing at all in the way of her seeing the train, if she had looked to the east? A. Nothing that I could see.

"Q. And she kept right on walking to the south, and the train kept on coming? A. Yes, sir.

"Q. And just as she got right up on to the track--on the north main line track--that instant the train struck her, didn't it? A. Yes, sir.

"Q. You heard it whistle? A. The moment it struck her.

"Q. It looked to you it whistled the moment it struck her, did it? A. Yes, sir.

"Q. You can't be positive about that, can you, with the train running so fast that a man could not get on it; the way it was, the whistle blew and then after that it struck her? A. No, sir, it struck her before it blew; right at the time it below.

"Q. Wasn't that just before she fell down? A. She was in the air when I heard the whistle blow.

"Q. The beam of the engine struck her, didn't it? A. I should judge it did;...