Waite v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 09 December 1912
• Parties: MARTHA E. WAITE, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

153 S.W. 66

168 Mo.App. 160

MARTHA E. WAITE, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 9, 1912

Appeal from Daviess Circuit Court.--Hon. A. B. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Paul E Walker, E. M. Harber and M. A. Low for appellant.

H. L Eads and A. G. Knight for respondent.

OPINION

ELLISON, J.

--Plaintiff is the widow of George H. Waite, who was killed by one of defendant's freight trains on one of its tracks at its station grounds in the town of Jamesport, Daviess county. Claiming that his death was caused by the negligence of defendant's servants, she brought this action for damages and prevailed in the trial court.

Jamesport is a town containing several hundred people, with defendant's railway station, grounds and tracks about dividing the business part on the north from the residence portion on the south. There are three tracks on the south of the station building, the one next to the platform being the main track. A long switch or house track, leaving the main track 400 feet below the station and connecting again about the same distance above, runs north of the station, passing along parallel with and in three feet of the platform. A much-traveled street called Broadway connects the business and residence parts of the town and passes over these tracks near the west end of the depot platform. A person coming along Broadway from the business houses to the station, or beyond to the residences, could turn off the street proper some two hundred feet from the station house and cross diagonally over to it on open ground, or, as it was called by some of the witnesses, a common. Or such person could keep in Broadway until he got to the house track at the west end of the platform and then turn square to the left down the house track, stopping at any place along the platform, or going on beyond as he might desire.

A freight train came in from the east about ten o'clock a. m. It had some freight to be unloaded and there were three or more cars standing with others on the house track which were to be put into the train, and one car in the train to be left on the house track. While some of the crew were unloading the freight, the engineer and brakeman set about getting these standing cars off the house track. In doing it they took the engine and part of the train up to the west end of the house track, backed in on it down to where the standing cars were. Two or three trips back and forth were necessary for the work. On the last trip, in backing down they struck one or more cars standing on the house track at the Broadway crossing, pushing them thence on east along the side of the station platform, striking and killing deceased upon the track a little south of the west end of the station house.

The reason deceased came to be at this place was this: He lived near to but south of the track, and 200 feet or more east of the station. He had been over into the business part of the town with his bucket to procure some vegetables from the stores, and was returning homeward. He was an old man, somewhat deaf. He came south along Broadway until he came to the car blocking his way at the crossing. He then turned east and as he got around or beyond the end of the car, must have gotten onto the house track (the ties of which were covered with dirt, or at least were flush with it) to walk on down past the station house and platform in the direction of his house, or possibly he may have intended to get up on the platform and was struck before doing so.

There was evidence tending to show that while deceased, when he arrived at the crossing, was bound to have seen other cars than the one immediately in his way, yet on account of obstructions to his view, he could not have seen that there was an engine at the far end.

Plaintiff claims that the house track was used by the public, with the knowledge of defendant, as a way or means of getting to, beyond and from the station, and that therefore it was its duty to expect and look out for such persons when doing train work and use ordinary care to warn them of danger. That defendant's servants saw deceased's peril, or might have seen it by the exercise of ordinary care, in time to have saved his life by stopping the cars or warning him off the track. There was evidence in the case to sustain plaintiff's claim.

As stated, the house track and open ground were on the north of the station platform. Nearby were the business houses of the town. The house track was used by the defendant to load and unload freight cars standing thereon for that purpose. To do this, people and teams continuously crossed the common or open ground, and were necessarily about, over and around this track. One team was so engaged further along at the time deceased was killed. But, as stated above, there was evidence in plaintiff's behalf to show that the general public, local and transient, also used these grounds and the track as a passway, with defendant's knowledge. The station itself was in the midst of the town and adjoined the business portion. In such circumstances it was defendant's duty, when moving its cars, to keep a lookout for persons on the track. [Fearons v. Kansas City El. Ry. Co., 180 Mo. 208, 223, 79 S.W. 394; Eppstein v. Mo. Pac. Ry., 197 Mo. 720, 734, 94 S.W. 967; Hufft v. Railroad, 222 Mo. 286, 301, 121 S.W. 120; Ellis v. Met. St. Ry. Co., 234 Mo. 657, 673, 138 S.W. 23; Railroad Co. v. Cross, 58 Kan. 424, 49 P. 599.] In the first of these cases it is said that the law "demands such operatives to be on the alert, and to keep a lookout for the realization of the anticipation or expected presence of the person." This duty, therefore, could not be performed by servants putting themselves in position where they could not see if any one was on the track.

In backing down to the crossing to couple onto the standing car or cars, the company's brakeman was on the end car and as the standing cars were approached he climbed down to see that a proper (automatic) coupling was made. After seeing that it was, he climbed back, but at no time, according to his statement, could he see the track ahead, for the reason that these cars to which he coupled were in the way. It was, at least, a question for the jury whether it was not negligence to thus strike and move these cars blindly, whether it was not the requirement of ordinary care, that some servant should have been at such a place as that he could know the way was clear. [Authorities above cited.]

We do not see any reasonable ground upon which to base a charge of contributory negligence, though that question was submitted to the jury. It could be said that deceased was turned into the course he took by defendant itself. For it blocked his way over the street crossing, not only on the house track but a large part of its train stood over the...