Steele v. Kansas City Southern Ry. Co.

• Decision Date: 30 March 1915
• Docket Number: No. 17029.,17029.
• Citation: 175 S.W. 177,265 Mo. 97
• Parties: STEELE v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

175 S.W. 177

265 Mo. 97

STEELE v. KANSAS CITY SOUTHERN RY. CO.

No. 17029.

Supreme Court of Missouri, Division No. 2.

March 30, 1915.

Rehearing Denied April 12, 1915.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Edward B. Steele against the Kansas City Southern Railway Company. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

Action for personal injuries. Plaintiff below, who is appellant here, obtained a verdict which upon motion of defendant was set aside and a new trial granted by the court. From this order granting a new trial plaintiff appeals. The ground for the granting of a new trial was that the court had erred in refusing to sustain defendant's demurrer to the evidence and in refusing to give a peremptory instruction, requested by defendant, that the finding of the jury should be for defendant.

The facts in the case so far as they are pertinent to the questions raised upon this appeal are about as follows: Plaintiff was on and about the night of October 25, 1910, employed in the water department of Kansas City as an emergency inspector. His duties as such required him to work at night. About midnight of October 25th, or shortly thereafter on the morning of October 26th, plaintiff had started to walk down Second street from Walnut street to Grand avenue, for the purpose of inspecting a hydrant somewhere near Second and Grand, which he says had been reported on the preceding evening to be leaking. There are on said Second street a number of railroad tracks which either belong to, or are used by, the defendant. It is immaterial as to the ownership, though the proof shows that these tracks are used by some three or four other railroads besides the defendant here. Among other tracks on this street there are what are called in the record the "north main track," on which track plaintiff was hurt, and the "south main track." These tracks on Second street run in an easterly and westerly direction. In the neighborhood, and north of the north main track, there is a spur track leading to some mercantile establishments situate along Second street; particularly one leading to the premises of Clemons & Co., who appear to be wholesale dealers in fruit and produce. The spur track leading to the Clemons premises joins the north main track by a switch somewhere near Walnut street. The injury to plaintiff occurred on Second street, and between Walnut street and Grand avenue. There is another switch connecting the north main track with another spur which leads out to other mercantile establishments in the neighborhood. These two switches, both of which connect with the north main track, are about 200 feet apart. Plaintiff was struck and injured about 100 feet west of Grand avenue, and therefore about 200 feet from Walnut street. No witness saw him hit, nor did any one see him upon the railroad track at or near where he was hit, until he was found lying between the north and south main line tracks very seriously injured. The case turns, therefore, wholly upon the testimony of plaintiff himself, and makes it necessary for us to rely upon his statement, a large part of which, to illustrate the subjoined discussion, we are compelled to set out in this statement in hæc verbs.

Plaintiff, testifying for himself, in substance, said that he reached the city hall, on the evening of October 25th, somewhere about 5 o'clock; that he was suffering from a very severe headache, and, after having taken some bromo-seltzer at a neighboring drug store, went into the city hall, sat down in a chair there, and slept until 12 o'clock; that he then ate supper at a neighboring restaurant and started to walk to Second and Main streets to see some person there with whom he had an engagement; that he did not find this person in at the midnight hour at which he called, and thereupon he walked east on Second street, toward the corner of Second street and Grand avenue, with as view of examining the hydrant which we mention above. His testimony is important and since the whole case turns upon it, we quote it:

"Q. Now, as you went from Second and Main to Second and Grand, what route did you go? A. I went east from Second and Main down the tracks. Q. Down what tracks? A. They call them the Southern there; the north track I went down. Q. The north track of the Southern Railway Company? A. Yes, sir. Q. How far did you go before something happened to you? A. Oh, I was, I suppose, 100 feet or more from Grand avenue this way, west—more than that. Q. A hundred feet or so west of Grand? A. Yes; west of Grand. Q. Now at that time, Mr. Steele, what part of the track were you walking on? A. I was walking on the north track. Q. What part of the north track would you say? A. What part of it? Q. Yes; nearer the north rail or nearer the south rail? A. Nearer the north rail. Q. But between the rails? A. Yes, sir. Q. Say when you were between Walnut and Grand any time, did you notice any switch engine anywhere? A. I did; yes. Q. Where was it? A. North of me on the private switch there—I suppose it's called a private switch—Clemons'. Q. On the Clemons' switch? A. Yes, sir. Q. Which way was the engine headed? A. Headed west. Q. The engine was headed west? A. Yes. Q. How were you walking, leisurely? A. Just leisurely; yes, sir. Q. Just walking along slowly. What was the first you knew of the approach of any car or engine or train behind you? A. Well, I don't know of any; only I heard them down on the Pacific or Chicago & Alton, whistling down there, blowing steam off. Q. Tell what happened to you then. A. I don't know; it just hit me in the back here [indicating]. Q. What hit you? A. I suppose the car hit me. Q. That's what I want you to tell this jury about. They don't know about it, you know. You were walking along there and a car hit you? A. Yes, sir. Q. From which direction was it coming? A. It was coming east. Q. From behind you? A. Yes, sir. Q. And what effect did it have upon you? A. Knocked me down and ran over my leg, and I scrambled to get out of the road. Q. As you fell, Mr. Steele, are you able to tell what direction you fell in, which way you fell? A. I fell to the north. Q. You fell to the north? A. Yes, sir. Q. Away from the track? A. Yes, sir. Q. State whether you had known of the approach of that car before that. A. No. Q. Did you know there was a box car coming on the track behind you? A. I didn't know it; no. Q. Did you hear any bell rung on the engine of that train? A. No, sir; not a thing. Q. Was your hearing good at that time? A. It was; yes."

The above is all that is pertinent in plaintiff's first examination in chief as to his actions, whereabouts, and position when he was hit. As to other matters, they, are either unimportant or not controverted. On his cross-examination his pertinent testimony as to his position when struck, and as to the conditions under which he was struck, was as follows:

"Q. What was there in the way of an obstruction between the two tracks? A. Cinders piled up, and it looked kind of rough to me, and of course, it was night. Q. Don't you know between the tracks and between the rails of the two tracks, all along there, the ground was smooth, no cinders piled up at all? A. No; I don't know that. Q. Do you swear now to this jury there were cinders piled up between the two tracks? A. Well, obstructions; I don't know what it was now. Q. What kind of obstructions? A. Just like a bump, like that; just stepped over on the north track. Q. You say a bump there between the two tracks? A. A. little; yes. Q. Did you see it? A. Yes, or I wouldn't have went over on the north track. Q. What was it? I don't know what it was. Q. Where was it? A. Just where I got hurt, just stepped over on the north track. Q. You had been walking then between the tracks, had you? A. I had been walking between the tracks. Q. You had been walking between the tracks? A. Yes, sir. Q. You just stepped over on to the north track right at the point where you got hurt? A. Yes, sir. Q. And the moment you got on the track you got struck? A. Yes—not the moment. Q. Just immediately after? A. Just immediately after."

Later in the cross-examination of plaintiff he was asked whether, when he stepped 2from his position between the two tracks over on to the north track whereon he was hurt, he looked behind him to see whether the engine or train were approaching, and he replied unequivocally that he did not. After this examination the plaintiff, as the record discloses, was excused as a witness, without any intimation by him or his counsel that he would be used further. After one other witness for plaintiff was heard, the evening adjourning hour having arrived, the court adjourned until Wednesday, May 24, 1911. On the following morning, that is, on the morning of May 24, 1911, after two other witnesses were called and had testified in behalf of plaintiff, the latter again took the stand in his own behalf, upon which the following testimony was given by him, omitting objections and exceptions and rulings of the court, which, since plaintiff had a verdict below, are no wise involved:

"Q. Mr. Steele, are you able to state—I will ask you this question first; since you were on the stand yesterday did you go to the scene of the accident on Second street between Walnut and Grand avenue? A. I did; yes, sir. Q. In company with myself and Mr. Kimbrell and Mr. Curtin? A. Yes, sir. Q. Now, I will have you to state, Mr. Steele, approximately the point where you got on the north track of the Kansas City Southern Railway on Second street before you were struck? A. At Walnut street. Q. You say it was at Walnut street where you got on the north track? A. Yes, sir. Q. After the time you got on the north track now, Mr. Steele, what direction did you go? A. East. Q. And where did you walk with reference to the north track from that point until you were struck? A. I was in between the rails of the north track, going east. Q. ...