Zumault v. Kansas City Suburban Belt Railroad Co.

• Decision Date: 09 June 1903
• Parties: ZUMAULT v. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY AND KANSAS CITY & INDEPENDENCE AIR LINE COMPANY, Appellants
• Court: Missouri Supreme Court

74 S.W. 1015

175 Mo. 288

ZUMAULT v. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY AND KANSAS CITY & INDEPENDENCE AIR LINE COMPANY, Appellants

Supreme Court of Missouri, Second Division

June 9, 1903

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

Reversed.

Lathrop Morrow, Fox & Moore for appellants.

(1) The law imputed to plaintiff a knowledge that this train did not carry passengers and hence the engineer was not bound to anticipate any person would be upon the platform for the purpose of taking passage. 5 Am. and Eng. Ency. Law (2 Ed.) 571; Logan v. Railroad, 77 Mo. 667; Sira v Railroad, 115 Mo. 127; Henry v. Railroad, 76 Mo. 288; Railroad v. Nuzum, 50 Ind. 141; Railroad v. Gants, 38 Kan. 608; Beauchamp v. Railroad, 56 Tex. 239; Railroad v. Ludlam, 57 F. 48; Railroad v. Pierce, 47 Mich. 277. (2) The plaintiff was clearly guilty of contributory negligence. This bars his recovery in this case, since there was neither allegation nor proof of recklessness, willfulness or wantonness on the part of the persons in charge of the train. Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Teel v. Railroad, 38 S.E. 518; Kellny v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 275; Jackson v. Railroad, 157 Mo. 622; Loring v. Railroad, 128 Mo. 349; Maloy v. Railroad, 84 Mo. 270; Railroad v. Townsend, 63 S.W. 994; Price v. Railroad, 84 Md. 506; Railroad v. McDonald, 52 S.W. 649; Smith v. Railroad, 43 S.W. 34; Railroad v. Staggs, 39 S.W. 295; Railroad v. Breadow, 36 S.W. 410; Railroad v. Staggs, 37 S.W. 609; Carrington v. Railroad, 6 So. 910; Bentley v. Railroad, 6 So. 37; Railroad v. Womack, 4 So. 618; Railroad v. Bush, 26 So. 168; Glass v. Railroad, 10 So. 215; Railroad v. Roberts, 23 So. 393; Nave v. Railroad, 11 So. 391; Price v. Railroad, 77 Mo. 508; Railroad v. Lee, 97 Ala. 233; Helton v. Railroad, 12 So. 276; Lyons v. Railroad, 59 S.W. 507; Embry v. Railroad, 36 S.W. 1123; Sims v. Railroad, 28 Ga. 93; Raden v. Railroad, 78 Ga. 47; Railroad v. Hankerson, 61 Ga. 114; Wilds v. Railroad, 82 Ga. 667; White v. Railroad, 84 Mo.App. 411; Skipton v. Railroad, 82 Mo.App. 134; Lien v. Railroad, 79 Mo.App. 475; Lenk v. Coal Co., 80 Mo.App. 375; Covell v. Railroad, 82 Mo.App. 180; Moody v. Railroad, 68 Mo. 470; Turner v. Railroad, 74 Mo. 602; Nelson v. Railroad, 68 Mo. 593; Suigert v. Railroad, 75 Mo. 475; Yarnell v. Railroad, 75 Mo. 575; Powell v. Railroad, 76 Mo. 80; Sims v. Railroad, 28 Ga. 93; Embry v. Railroad, 36 S.W. 1123; Brennan v. Railroad, 83 F. 124; Gunderman v. Railroad, 58 Mo.App. 370; Railroad v. Bell, 18 A. 561; McGeehan v. Railroad, 24 A. 205; Holmes v. Railroad, 97 Cal. 16; Matthews v. Railroad, 24 A. 67; Railroad v. Turley, 85 F. 369; Railroad v. Martin, 44 S.W. 703; Lenix v. Railroad, 64 Mo. 86; Fletcher v. Railroad, 64 Mo. 484; Gorton v. Railroad, 45 N.Y. 662; Austin v. Railroad, 91 Ill. 35; Kreis v. Railroad, 148 Mo. 321; Burns v. Railroad, 101 Mass. 50; Yancey v. Railroad, 92 Mo. 433; Taylor v. Railroad, 64 Mo. 486; Taylor v. Railroad, 86 Mo. 457; Dlauhi v. Railroad, 105 Mo. 645; Maxey v. Railroad, 113 Mo. 1; Boyd v. Railroad, 105 Mo. 371; Aerkfetz v. Humphreys, 145 U.S. 418; Elliott v. Railroad, 152 U.S. 245; Gardner v. Railroad, 56 N.W. 60; Kelsay v. Railroad, 129 Mo. 362; Watson v. Railroad, 133 Mo. 246; Lane v. Railroad, 132 Mo. 4; Allen v. Railroad, 19 A. 150; Railroad v. Morris, 62 S.W. 1012; Provost v. Railroad, 28 So. 168; Railroad v. Walker, 49 S.W. 682; Smith v. Railroad, 43 S.W. 34; Settoon v. Railroad, 19 So. 759; Matthews v. Railroad, 23 S.E. 177; Winslow v. Railroad, 42 N.E. 1133; Bradley v. Railroad, 65 N.W. 102; Kirtley v. Railroad, 65 F. 386. (3) The court erred in giving plaintiff's instructions, in modifying defendants' instruction as given by it, and in not giving defendants' refused instructions. See authorities under point 2.

John L. Wheeler for respondent.

(1) The judgment should be affirmed because the stipulation for extension was not filed in the division of the court in which the judgment was rendered, and because it was not copied in the bill of exceptions as required by statute. Sec. 728, R. S. 1899. (2) Even though respondent was guilty of negligence in sitting upon the platform in the position he was struck, yet, if the appellants could have avoided injuring him by the use of ordinary care and diligence, such as sounding the danger signals or stopping the train after they saw him, or could have seen him, the verdict in this case should be affirmed. Morrissey v. Ferry Co., 43 Mo. 384; Brown v. Railroad, 50 Mo. 466; Walsh v. Trans. Co., 52 Mo. 438; Burnham v. Railroad, 56 Mo. 342; Myers v. Railroad, 59 Mo. 231; Sullivan v. Railroad, 97 Mo. 118; Hanlon v. Railroad, 104 Mo. 388; Yancy v. Railroad, 93 Mo. 436; Harlan v. Railroad, 64 Mo. 480; Lenix v. Railroad, 76 Mo. 86; Moody v. Railroad, 68 Mo. 470; Rine v. Railroad, 88 Mo. 396; Maher v. Railroad, 64 Mo. 267; Bergman v. Railroad, 88 Mo. 678; Kellny v. Railroad, 101 Mo. 67; Reardon v. Railroad, 114 Mo. 403; Bunyan v. Railroad, 127 Mo. 18; Chamberlain v. Railroad, 133 Mo. 604; Morgan v. Railroad, 159 Mo. 283; Langan v. Railroad, 72 Mo. 394. (3) The authorities discussed in the first paragraph of appellants' brief have no application whatever to this case. Those were cases where passengers did obtain or could have obtained at defendants' depots all the information in regard to the proper train they should have taken. But in violation of the information which they received or could have received, they took trains that did not stop at their destination and were put off by the defendants' servants at some other station. In this case the respondent had no means of ascertaining that his train had passed or was behind time, or that there was such a train as the "backover" running at this hour of the night. The second paragraph of appellants' brief is solely on the question of contributory negligence. Under that paragraph appellants have cited about four pages of authorities. We, with great labor, have waded through all of their citations, and have found nothing to sustain them in the position that plaintiff's contributory negligence bars him of his right of recovery in this case.

OPINION

BURGESS, J.

This is an action for twenty thousand dollars damages alleged to have been sustained by plaintiff on the night of the second day of August, 1895, by reason of the negligence of defendants.

The petition alleges:

"That on the dates hereinafter mentioned the said Kansas City Missouri, was and for many years prior thereto had been a municipal corporation duly created, organized and existing under and by virtue of the laws of the State of Missouri. That from the eastern limits of Kansas City, Missouri, to the Grand Central depot in said city, both defendants herein at all the times herein mentioned, ever since have and now use and occupy the same tracks, depots and platforms and the depot and platform hereinafter mentioned. That the defendants constructed a depot and platform on said railway at a point called Elmdale within the corporate limits of said city for the use and convenience of their passengers traveling on said roads, and the same were used for said purposes on the dates hereinafter mentioned. That on the second day of August, 1895, at about fifteen minutes after eleven o'clock p. m. plaintiff went to said station and depot for the purpose of taking passage on one of defendant's trains east to a station on said railroad called Milwaukee; that upon his arrival at said station plaintiff sat down upon said platform and while he was in that position, and in the exercise of ordinary care and diligence, a train from the west, composed of a locomotive and cars propelled by steam, managed, operated and propelled by defendants, their agents and servants, carelessly and negligently struck plaintiff on the left side of the head, mashing and splintering the skull, and otherwise seriously and permanently injuring plaintiff as hereinafter stated. That the injuries received by plaintiff as aforesaid were caused by the wrongful act, negligence, carelessness, unskillfulness and default of the defendants, in this: that the servants and agents and employees of defendants at the time and place when and where plaintiff was injured as aforesaid, and whilst so running, conducting and managing said locomotive and cars thereto attached, negligently and carelessly and unskillfully failed to give warning by the ringing of the bell or the blowing of the whistle to plaintiff of the approach of said locomotive and cars thereto attached, as it was their duty to do, after they knew, or by the use of ordinary care might have known, of the danger to which plaintiff was exposed; that at the time and place aforesaid, the agents and servants and employees of defendants whilst running, managing and conducting said locomotive and cars thereto attached, negligently, carelessly and unskillfully struck and injured plaintiff when they knew, or by the exercise of ordinary care might have known of the danger to which plaintiff was exposed; that at the time plaintiff was injured as aforesaid, the servants, agents and employees of the defendants whilst running, conducting and managing said locomotive and cars thereto attached, negligently, carelessly and unskillfully failed to stop said locomotive and cars in time to avoid collision with plaintiff after they knew, or by the use of ordinary care might have known of the danger in which plaintiff was placed; that the defendants had carelessly and negligently permitted the weeds on their right of way, on the south side of their south track, and west of said depot and platform, to grow so high that they obstructed the view of an approaching train from the west to a passenger on said platform, and obstructed the...