Kreis v. Missouri Pac. Ry. Co.

• Decision Date: 23 December 1898
• Citation: 148 Mo. 321,49 S.W. 877
• Court: Missouri Supreme Court
• Parties: KREIS v. MISSOURI PAC. RY. CO.<SMALL><SUP>1</SUP></SMALL>

49 S.W. 877

148 Mo. 321

KREIS v. MISSOURI PAC. RY. CO.¹

Supreme Court of Missouri.

December 23, 1898.

RAILROADS — ACCIDENT NEAR TRACK — CONTRIBUTORY NEGLIGENCE — REVIEW.

An adult woman was proceeding along a pathway between railway tracks to a station, with an umbrella over her head, which obstructed her view, and, knowing that a train

was approaching behind her, suddenly, without looking, rushed to a point where a collision was inevitable. She was not in danger so long as she followed the path. The company had no reason to anticipate that she intended to cross the track, or venture too near the cars, until they were so close that a collision could not be avoided. Held that, in action by the husband for damages for her death, an instruction in the nature of a demurrer to the evidence was proper.

In banc. Appeal from circuit court, Jefferson county; John M. Wood, Special Judge.

Action by John A. Kreis against the Missouri Pacific Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Martin L. Clardy and Louis F. Dinning, for appellant. L. Frank Ottofy, for respondent.

SHERWOOD, J.

Action for damages for death of wife, caused by coming into collision with a railroad train. Trial, with the usual result, necessitated an appeal by defendant company.

This cause has been here before. 131 Mo. 533, 33 S. W. 64, 1150. It came up then on appeal of plaintiff because the trial court set aside the verdict, and granted a new trial to defendant. In concluding an opinion which affirmed the judgment of the lower court, it was observed: "The motion for a new trial must have been sustained upon the ground of the insufficiency of the evidence to support the verdict, and in sustaining the motion and granting a new trial upon that ground we are not prepared to say that the court abused its discretion." 131 Mo., loc. cit. 546, 33 S. W. 67. It seems to me that, if the trial court acted on the theory just mentioned, it erred in not limiting its action to vacating the verdict, since our Code, though liberal in its amendment of pleadings, has not yet advanced so far as to contemplate the amendment of evidence.

But, digressing from the present digression, I turn to the facts and features the record now on hand contains. The opinion of Burgess, J., on the former appeal, has, among others, this statement of facts: "Deceased had been a resident of Webster Groves for about eighteen months; had frequently taken passage on the train by which she lost her life; was familiar with the track and surroundings, and knew the time of the arrival of the train, which was about 9 a. m., but on the morning of the accident was a few minutes late. On that morning it was misting rain. Mrs. Kreis had an umbrella over her right shoulder, and a basket of eggs in her left hand. She did not see the train before it struck her. The south track was used by trains en route to St. Louis, and the north track for those going west. There was a switch or spur leaving the south track of the railroad about four hundred feet east of Murphy's crossing, and it was near the head of this spur switch that deceased approached near enough to the south track to be struck by the beam or deadwood of the engine attached to a train which was proceeding eastward at a speed of about twenty miles per hour, or in front of it, and was killed. The space between the two tracks was eight feet five and one-half inches, and she was on this space all the time until the moment of the collision, when she stepped close to the rail, between two ties, or in front of the train. She was never on the railroad track, if at all, until just at the instant that she was struck by the train." 131 Mo., loc. cit. 538, 539, 33 S. W. 65. Examining the present record, I find substantially the same state of facts existed at the last trial as existed at the first. A large portion of the testimony read in evidence was read from the bill of exceptions taken at the first trial. This is true of the testimony of Willis, Caffrey, Cassilly, Ridington, Folger, and others. With the width of the pilot beam or cross beam clear across given at about 8 feet 6 inches, and the width between the rails given at 4 feet 8½ inches, and the width between the north and the south tracks given at 8 feet 5½ inches, it would follow that the projection of the cross beam over the last-mentioned space would be some 22¾ inches, leaving a clear space between the two tracks of over 6 feet to a person walking in between them, in which to walk in perfect safety.

At this point I deem it not improper to quote from the opinion of Judge J. F. Green, who presided at the first trial of this cause, and I do this the more readily as his opinion coincides in its statement of facts with that of Judge Burgess: "When Mrs. Kreis entered upon the railroad, she took this path, and proceeded eastward towards the depot. There is a switch or spur leaving the south track of the railroad about 400 feet east of Murphy's crossing, and it was near the head of this spur or switch that deceased approached near enough to this south track to be struck by the beam or deadwood of the engine attached to a train which was proceeding eastward on the south track at a speed of about 20 miles per hour. Mrs. Kreis was never on the railroad track at all. The space between the two tracks was 8 feet 5½ inches, and she was on this space all the time until the moment of the collision, when she stepped close to the rail between two ties. There was considerable testimony as to the distance, at or near Murphy's crossing, between the two tracks could be seen from the engine approaching from the west; but I do not regard this as important, as all of the testimony shows that the plaintiff's wife was not in the slightest peril until she stepped near the south track, 400 feet east of the crossing. Mr. Welles (plaintiff's witness) testified that he was standing near the depot (which is about 1,200 feet east of Murphy's crossing), and saw Mrs. K. coming down the path on the space between the tracks, and that he saw the train coming in the same direction, and immediately behind her. He hardly realized the fact that she was in any danger until the moment of contact, when, following the meanderings of the path, she stepped near the end of the ties, and was struck by the train. Frank Chambers' testimony is to the same effect. He says that Mrs. Kreis was coming rapidly along the ends of the ties, carrying the umbrella raised over her right shoulder, when she was struck. He and all other witnesses agree that she was not in any danger whatever while she remained in the middle of the path between the two tracks. Plaintiff's witnesses say that no signals were given by the employés in charge of the train until at the time or a moment before the train came in contact with Mrs. K. She was hurrying to the station to take the train which struck her, and that she heard it coming, and was endeavoring to reach the depot in ample time, is shown by the testimony of Chambers, who says she was running. She seems, however, to have been oblivious to her surroundings, and inadvertently approached too near the track, and in doing so failed to observe the most obvious dictates of prudence and caution, and the injury to her resulted therefrom. In such cases the rule of law is that there can be no recovery, although the employés of the railroad company were remiss in their duty as to giving the customary signals or warnings of danger. Powell v. Railroad Co., 76 Mo. 80; Boyd v. Railroad Co., 105 Mo. 371, 16 S. W. 909; Taylor v. Railway Co., 86 Mo. 457; Turner v. Railroad Co., 74 Mo. 602; Butts v. Railroad Co., 98 Mo. 272, 11 S. W. 754; Harlan v. Railway Co., 64 Mo. 480; Cagney v. Railway Co., 69 Mo. 416; Moody v. Railway Co., 68 Mo. 470; Yancey v. Railway Co., 93 Mo. 433, 6 S. W. 272. As to the rate of speed at which the train was running it may be said that there was no evidence as to any ordinance of the town of Webster Groves prescribing the speed of trains, and,...