Walker v. Wabash Railroad Company

• Decision Date: 22 February 1906
• Citation: 92 S.W. 83,193 Mo. 453
• Parties: WALKER v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

92 S.W. 83

193 Mo. 453

WALKER v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Division One

February 22, 1906

Appeal from Randolph Circuit Court. -- Hon John A. Hockaday, Judge.

Reversed.

Geo. S Grover for appellant.

(1) The substituted cause of action was barred by the statute on May 5, 1903, at the time the amended petition was filed. Courtney v. Sheehy, 38 Mo.App. 290; Clemens v Greenwell, 40 Mo.App. 589; Poor v. Watson, 92 Mo.App. 101; Case v. Cordell, 78 S.W. 62; Bricken v. Cross, 163 Mo. 449; Sec. 2868, R. S 1899. (2) At the time of this accident Charles L. Walker was sui juris. Payne v. Railroad, 136 Mo. 562. (3) Upon the undisputed facts plaintiff was not entitled to recover upon his own testimony. Henze v. Railroad, 71 Mo. 636; Moberly v. Railroad, 98 Mo. 183; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Payne v. Railroad, 136 Mo. 162; Holwerson v. Railroad, 157 Mo. 216; Tanner v. Railroad, 161 Mo. 497; Hook v. Railroad, 162 Mo. 569; Van Bach v. Railroad, 171 Mo. 338; Guyer v. Railroad, 174 Mo. 344. (4) The trial court admitted incompetent testimony over defendant's objection. Sec. 1102, R. S. 1899; Chitty v. Railroad, 148 Mo. 75. (5) The instructions given by the trial court at plaintiff's request were so erroneous and prejudicial as to necessitate a reversal of this judgment. Henze v. Railroad, 71 Mo. 636; Hook v. Railroad, 162 Mo. 569.

Willard P. Cave and Aubrey R. Hammett for respondent.

(1) There was no substitution of a new cause of action in this case. Plaintiff had but one son and his name was Charles L. Walker, and he lost his life as stated in plaintiff's petition; and the clerical error in the given name in the original petition was properly corrected in the amended petition. Sec. 657, R. S. 1899; Lilly v. Tobbein, 103 Mo. 477; Parry v. Woodson, 33 Mo. 347; Harkness, Adm., v. Julian, 53 Mo. 238. (2) The measure of care to be expected of a boy fourteen years old is that of an ordinarily prudent boy of that age and not that of an ordinarily prudent man of mature years. Campbell v. Railroad, 175 Mo. 163; Beach on Contributory Negligence (3 Ed.), sec. 216; Plumley v. Birge, 124 Mass. 57; 7 Am. and Eng. Ency. Law (2 Ed.), 405; Holmes v. Railroad, 88 S.W. 623; Eswin v. Railroad, 96 Mo. 290; Duffy v. Railroad, 19 Mo.App. 380. (3) Appellant has failed to bring up all the evidence in this case; hence, his demurrer to the evidence should not be considered. Williams v. Stroub, 168 Mo. 346; Nash v. Press Brick Co., 109 Mo.App. 601; Goodson v. Railroad, 23 Mo.App. 76; Meriwether v. Howe, 48 Mo.App. 152; Davis v. Vories, 141 Mo. 234; Reid v. Peck, 163 Mo. 333. (4) The trial court very properly overruled defendant's demurrer to the evidence for the reason that plaintiff's evidence did not show that deceased was guilty of contributory negligence, and hence that question was properly submitted to the jury. Stone v. Hunt, 94 Mo. 475; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Warren v. St. Louis Merchants Exchange, 52 Mo.App. 157; Weller v. Railroad, 164 Mo. 199; Evans v. Railroad, 178 Mo. 508; Heinzle v. Railroad, 182 Mo. 528; Allen v. Railroad, 183 Mo. 411; Erickson v. Railroad, 171 Mo. 647; Van Bach v. Railroad, 170 Mo. 338. (5) The testimony in rebuttal as to the location of the whistling post was clearly competent, as the engineer testified that he sounded the whistle at the post; with the whistling post 2,050 feet away from the crossing, instead of 1,320, the customary distance, the engineer's own statement showed that he had not complied with the requirements of the law. (6) The instructions given by the trial court on plaintiff's part declare the law correctly. Weller v. Railroad, 164 Mo. 180.

LAMM, J. Marshall, J., concurs in the result.

OPINION

LAMM, J.

Walker, as surviving parent of a minor son, Charles L. Walker, the issue of a first marriage, seeks to recover of respondent on an amended petition $ 5,000, damages for negligently killing his said child at a public road crossing on May 1, 1901, in Randolph county.

A resume of the abandoned petition as well as the trial pleadings will aid in getting at some of the questions presented here.

Sometime in 1902, plaintiff sued for the death of a son named Elbert Walker. Steps were taken by defendant to remove this cause to the United States circuit court. When lodged there, it was by that court (for reasons not shown to this court) remanded to the State court. After being so remanded and on May 5, 1903, two years and four days after the cause of action accrued, plaintiff filed an amended petition in which he sued for the death of a son named Charles L. Walker. The first petition contained a general averment of negligence, with the additional allegation that the death of Elbert Walker was caused by the negligent omission of the statutory crossing signals. The second petition omitted the general charge of negligence, but counted on the negligent omission of the crossing signals and made the additional charge that defendant's servants, running the locomotive and train, saw the peril of said Charles L. Walker at the crossing, or could have seen his peril by using ordinary care and could have prevented the death of the boy by using ordinary care after such discovery.

Defendant assailed this petition by a motion to strike out, framed on the theory that there was a departure from the original cause of action and not an amendment, and on the theory that the alleged new cause of action was barred by the one-year Statute of Limitations, Revised Statutes 1899, section 2868. What disposition was made of this motion the record does not show, but we assume it was overruled, though neither that fact is shown, nor is exception noted.

Be that one way or the other, on the next day defendant answered by a general denial, and by pleading the original petition counting on the death of "Elbert Walker," followed by the averment that plaintiff never had a son named Elbert Walker and another showing that the amended petition was filed on the 5th of May, 1903, and that the cause of action therein stated was barred by the express terms of section 2868, Revised Statutes 1899, and is a departure from the original petition. The answer further set up the contributory negligence of Charles L. Walker, in that he drove upon defendant's track at the public crossing without looking or listening, when by looking he could have seen and by listening he could have heard the approach of defendant's train in time to have remained away from the track in a place of safety. Averring, furthermore, that plaintiff by negligently permitting his son to drive upon the track in that way had caused his death. Pleading, also, that it is a citizen of Ohio, while plaintiff is a citizen of Missouri and that the action of the Federal court in refusing to hold jurisdiction of the cause had denied the defendant the privilege, right and immunity claimed by it under the Constitution and laws of the United States, and violated the 14th amendment to the Constitution of the United States, and violated section 30 of article 2 of the Constitution of the State of Missouri.

By reply, plaintiff denied all the allegations of new matter contained in the answer, and, by way of further reply, averred that "by an error of the scrivener" the name of Elbert Walker, as the name of the minor son killed, was inserted in the original petition, while in truth and in fact the true name was Charles L. Walker, and that Elbert Walker and Charles L. Walker are, and were intended to be, one and the same person and that person's name was Charles L. Walker.

Thereupon defendant assailed the new matter pleaded in the reply by a motion to strike out, (1) because it was a departure from the cause of action in the original petition, (2) because the new matter constituted an amendment to the original petition not permitted in a reply, and (3) because the new matter is barred by section 2868, supra. This motion was overruled and defendant duly saved its exceptions.

On the heels of the above ruling, a trial was had to a jury and thereat the following facts were uncovered:

Walker's present wife was a widow Peak who, with herself, brought as a further contribution to Walker's family a minor son named Elbert Peak. It is asserted in appellant's brief that this lad was known as Elbert Walker, but we find no evidence to sustain such contention and it may be dismissed as a mere plausible conjecture. The Walker family lived in the neighborhood of a coal mine adjacent to the main track of defendant's railroad in Randolph county, at a point between Huntsville and Moberly, which track, barring a slight curve, at the place in hand runs in the general direction of east and west. The two boys, Charles and Elbert, with their father plied the avocation of hauling timber to said mine. The team used, being old and thin, was correspondingly gentle, slow and safe. The wagon used was without a bed, was equipped with a frame for timbering purposes and with a platform for carrying tools, and, when unloaded, those riding thereon rode on its forward bolster. The public wagon road runs east and west south of, parallel with and adjacent to the railroad and, at some distance west of said mine, turns north and thence, between wing-fences leading to cattle guards, with a slight slope up for fifty feet after the turn approaches and crosses the track. This crossing is the locus in quo. The railroad approaches it from the east on a slight curve. At some distance east there is a cut and from where the railroad leaves the cut it runs on a slight fill up to and over the crossing. Taking into consideration the curve, cut, fill, the lay of the land, the wing-fences, etc., described in the record, it seems to be substantially...