Candee v. Kansas City & I. Rapid Transit Ry. Co.
Decision Date | 02 July 1895 |
Citation | 130 Mo. 142,31 S.W. 1029 |
Court | Missouri Supreme Court |
Parties | CANDEE v. KANSAS CITY & I. RAPID TRANSIT RY. CO. |
1. Defendant's train hands saw plaintiff walking on the track about 400 feet ahead of the train, and the whistle was sounded and the bell rung, to which he paid no attention. When about 130 feet from him, an ineffectual attempt was made to stop the train, which overtook and injured plaintiff. Held, that an instruction that plaintiff had no additional right of recovery by reason of defective hearing and eyesight, unless the jury found that the trainmen had knowledge of such defect, and that, in the absence of such knowledge, they had the right to presume that he had ordinary sight and hearing, was correct.
2. The appellate court will not reverse the trial court for errors not saved in the motion for new trial.
3. Under Act April 18, 1891, amending Rev. St. § 2246, allowing a party to appeal from an order granting a new trial, and Rev. St. § 2241, requiring the trial court to specify the ground on which it granted the new trial, the verdict must stand if, in the opinion of the appellate court, the grounds specified are insufficient.
Appeal from circuit court, Jackson county; James H. Slover, Judge.
Action by Benjamin Candee against the Kansas City & Independence Rapid Transit Railway Company, for personal injuries. There was a verdict for defendant. From an order granting a new trial, defendant appeals. Order reversed, with directions to enter judgment on the verdict for defendant.
The defendant is a railway corporation, and operated a railroad between Kansas City and Independence at the time of the injuries complained of in plaintiff's petition. Plaintiff alleged that in June, 1889, while he was walking on defendant's track, it carelessly, negligently, and wrongfully ran its engine and cars into and upon him, and negligently failed to stop its said engine and train after discovering plaintiff in a situation of danger in time to have avoided injuring him, which could have been done by the exercise of ordinary care; and negligently failed to ring any bell or sound any whistle to warn plaintiff of the approach of said train, whereby he was greatly injured. The answer was a general denial, and that whatever injuries he received were caused by his own negligence in walking upon defendant's track at a point other than a crossing, and while so walking was injured. The cause was tried to a jury, and the jury rendered a verdict for the defendant. Plaintiff in due time filed his motion for a new trial, which was sustained by the following order: "`Now on this day, come parties herein by attorney, and, the motion of plaintiff for a new trial being now taken up, the same is by the court sustained, for the reason that the court erred in giving defendant's first instruction' to which ruling of the court said defendant excepts, and defendant now files affidavit for an appeal, which appeal is by the court allowed, as prayed, to the supreme court of Missouri, and defendant is given ten days in which to file an appeal bond in the sum of two hundred and fifty dollars, and ninety days in which to file bill of exceptions." In due time the appeal was perfected, and the bill of exceptions signed and filed.
The evidence discloses that the defendant's railroad was a double-track road. At the time of the accident the south track was not completed, and both east and west trains were using the north track. Plaintiff testified that in June, 1889, he was walking from Kansas City to Washington Park on the left-hand track of defendant's railroad. He heard no train coming, or any signal given. He testified he could not Frank D. Walker, a witness for plaintiff, testified the accident occurred about 10 o'clock in the forenoon. "I think it was a clear day." Plaintiff was struck about 400 or 500 feet east of a cut of defendant's road. Plaintiff introduced three locomotive engineers, who testified as to the distance in which defendant's train could have been stopped. Charles F. Kirby fixed the distance at one hundred feet, E. J. Murray at "within seventy-five or a hundred feet," and A. W. Dodson at "from eighty to one hundred and twenty feet." Dr. G. C. Stemen attended the plaintiff, and treated him for his injuries. He testified: Walton H. Holmes, president of defendant, testified that defendant bought its road in March, 1889, from the company which had constructed it. At that time "it was a very poor single-track road." In April defendant commenced to put down a double track, but at the time of the accident to plaintiff the south or right-hand track was not finished. "The north track was in a condition to operate on, and the other was not." N. S. McKinney was a passenger on the train which struck the plaintiff. He testified: Mr. Peterson, an hotel keeper in Independence, was also a passenger. He was asked: Two locomotive engineers were offered by defendant, and testified as to the distance in which defendant's train could have been stopped. They both fixed the distance at one hundred and fifty feet. W. E. Reeves, who had been railroading 24 years, said: "In my judgment, that train ought to stop in one hundred and fifty or two hundred feet." A. J. Batton, the engineer of the train which struck the plaintiff, fixed the distance at one hundred and fifty feet, and gave this graphic account of the occurrence: ...
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