98 S.W. 529 (Mo. 1906), Charlton v. St. Louis & San Francisco Railroad Co.

Citation:98 S.W. 529, 200 Mo. 413
Opinion Judge:LAMM, J.
Party Name:WILLIAM R. CHARLTON and MARTHA A. CHARLTON, Appellants, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY
Attorney:Flournoy & Flournoy for appellants. L. F. Parker and Pratt, Dana & Black for respondent.
Judge Panel:LAMM, J. Brace, P. J., and Valliant, J., concur; Graves, J., concurs in the result.
Case Date:December 22, 1906
Court:Supreme Court of Missouri
 
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Page 529

98 S.W. 529 (Mo. 1906)

200 Mo. 413

WILLIAM R. CHARLTON and MARTHA A. CHARLTON, Appellants,

v.

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY

Supreme Court of Missouri, Division One

December 22, 1906

Page 530

Appeal from Jackson Circuit Court. -- Hon. Andrew F. Evans, Judge.

Reversed and remanded (with directions).

Flournoy & Flournoy for appellants.

(1) Respondent was guilty of negligence in placing and maintaining the water crane so near the track that it was dangerous to brakemen who in the performance of their duties might be upon the side ladders of box cars passing it. Railroad v. McDade, 191 U.S. 64; Railroad v. Michaelis, 57 Kan. 474; Railroad v. Thompson, 94 Ala. 636; Railroad v. Davis, 92 Ala. 300; Central Trust Co. v. Railroad, 73 F. 661; Wither v. Somerset Traction Co., 98 Me. 61; Railroad v. Mansell, 138 Ala. 548; Murphy v. Railroad, 115 Mo. 111; Railroad v. Thompson, 210 Ill. 226; Kellerher v. Railroad, 80 Wis. 584. (2) As the water crane in question was not so near the track as to be conspicuously dangerous, the deceased was not guilty of contributory negligence in assuming that it would not injure him and continuing to perform his duties. Neither did he assume the risk, as it was not incident to his employment, but the result of the negligence of his employer. Lee v. Railroad, 92 S.W. 614; Emporia v. Kowalski, 66 Kan. 64; Rouse v. Ledbitter, 56 Kan. 348; Minnier v. Railroad, 167 Mo. 99; Lawrence v. Heidbreder, 93 S.W. 897; Phippin v. Railroad, 93 S.W. 410; Curtis v. McNair, 173 Mo. 280. (3) It was error for the court to strike out the testimony of a witness that the crane in question had struck his arm as he was passing it on a car ladder. District of Columbia v. Armes, 107 U.S. 519; Golden v. City of Clinton, 54 Mo.App. 100; Campbell v. Railroad, 121 Mo. 340. (4) It was error for the court to refuse to permit appellants to show by witness Lane the projection over the track rail of certain box cars which he had measured at Paola, and to refuse to permit appellants to show by said witness the projection over the track rail of a standard box car, because the negligence of respondent consisted in placing the crane so near the track as to endanger its brakemen, hence the extent of the projection over the track rail of all kinds of box cars was relevant. (5) It was error for the trial court to refuse to permit appellants to show that all freight trains on respondent's road going out of Kansas City took water at a crane like the one in question which was situated six feet from the nearest rail, because such evidence was relevant as bearing upon the question of the negligence of the deceased. (6) It was error for the trial court to refuse to permit appellants to show that it was customary for brakemen on freight trains to keep trespassers off the trains. That was the proper way to show that keeping trespassers off trains was one of the duties of a brakeman. No freight trains watered at the iron crane at Paola, hence the deceased would not probably have examined it as closely as he would the one where his trains did take water, and would naturally presume that the one at Paola was as far from the track as the one at Kansas City, which was six feet from the nearest rail.

L. F. Parker and Pratt, Dana & Black for respondent.

The court did not err in sustaining defendant's demurrer to the evidence. The deceased was guilty of contributory negligence, and the danger was one of the risks of the business in which he was engaged and was open and obvious. There was no proof of any negligence in the construction or location of the water crane. (1) Cases cited by appellants are not in point, and the facts easily distinguish them from the case at bar. The case of Murphy v. Railroad, 115 Mo. 111, is essentially different from the facts herein. The case was a close one and it was admitted that it was decided upon the peculiar facts involved. That case is easily distinguished from the case at bar, because in this case there was no necessity for Charlton's exposing himself when he might have avoided danger. The case of Railroad v. Michaels, 57 Kan. 474, is not a similar case. (2) The weight of authority is against appellant's right to recover. Randall v. Railroad, 109 U.S. 479; Austin v. Railroad, 164 Mass. 282; Goodes v. Railroad, 162 Mass. 287; Scidmore v. Railroad, 89 Wis. 188; Jennings v. Railroad, 7 Wash. 275; Wilson v. Railroad, 85 Ala. 269; Railroad v. Finney, 145 Ind. 551; McKee v. Railroad, 83 Iowa 616; Brown v. Railroad, 69 Iowa 167; Platt v. Railroad, 84 Iowa 694. (3) Plaintiffs alleged negligence in their petition, but did not prove the same. They could not recover for that reason. Sisco v. Railroad, 145 N.Y. 296; Rains v. Railroad, 71 Mo. 164. (4) The danger of being struck by defendant's water crane on its platform at Paola, Kansas, was open and obvious, if there was any danger in the usual operation of the same. Blundell v. Mfg. Co., 88 S.W. 103; Chrismer v. Bell Telephone Co., 92 S.W. 384; Wagner v. Railroad, 33 Kan. 660; Rush v. Railroad, 36 Kan. 129; Weld v. Railroad, 39 Kan. 68; Clark v. Railroad, 48 Kan. 654; Shroeder v. Railroad, 47 Kan. 315; Walker v. Scott, 67 Kan. 814; Daniels v. Creamery Package Co., 83 P. 986.

LAMM, J. Brace, P. J., and Valliant, J., concur; Graves, J., concurs in the result.

OPINION

Page 531

[200 Mo. 418] LAMM, J.

James W. Charlton was a freight brakeman in the defendant's employ. In June, 1902, while climbing the ladder of a box car in his train, his body came in contact with a standpipe or water crane maintained by defendant close to its track to supply its passenger engines with water at Paola, Kansas. He was knocked from the car and mortally wounded, shortly thereafter dying in a hospital.

His father and mother sue by virtue of certain statutes of the State of Kansas for $ 10,000 damages.

[200 Mo. 419] At the close of plaintiff's case, the court gave an instruction on behalf of defendant in the nature of a demurrer to the evidence. Thereupon plaintiffs took a nonsuit with leave, and, having unsuccessfully moved the court to set the nonsuit aside, they bring the case here by appeal.

The statutes of Kansas pleaded (and proved at the trial) were as follows:

First. Paragraphs 418 and 419 of the General Statutes of Kansas of 1897, chapter 95, the same being paragraphs 4686 and 4687 of Dassler's Compilation of 1899 of the General Statutes of Kansas.

Paragraph 418. "When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

Paragraph 419. "In all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of the civil code of 1868 (the next preceding section) is or has been at the time of his death in any other State or Territory, or when being a resident of this State no personal representative is or has been appointed, the action provided in this section may be brought by the widow, or when there is no widow, by the next of kin of such deceased."

Second. Paragraph 19, chapter 109, of said General Statutes of Kansas, 1897, the same being paragraph 2459 of said Dassler's Compilation, and reading thus:

[200 Mo. 420] "If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents."

Having set forth defendant's incorporation and business as a domestic railroad corporation, transporting freight and passengers in Missouri and Kansas, and that said road passed through Paola, etc., the petition pleaded the foregoing statutes and bottomed a right to recovery thereon upon the averments of fact that James W. Charlton was in its employ as a brakeman on one of its freight trains passing through Paola on June 26, 1902; that he was a non-resident of said State and resided in Missouri; that no administration had been taken out in Kansas, he leaving no property there to administer upon; that he was twenty-nine years of age and died intestate, without issue; that he was materially aiding in supporting his parents in Missouri; who, through financial straits and indifferent health, were in need of such support; that plaintiffs were his father and mother and under the said laws of Kansas, as construed by its courts of final resort, a cause of action survived and existed to plaintiffs because of the negligent and wrongful death of said James W. Charlton caused by defendant, in manner as follows:

"That at the town of Paola defendant had erected on its roadway an iron standpipe or water crane, for the purpose of supplying its engines with water; that defendant negligently erected said standpipe or water crane some time prior to said 26th day of June, and on said day was negligently maintaining the same, and long prior thereto had negligently maintained the same so near to its tracks, to-wit, at a distance of about eighteen inches or two feet from the side of a passing car, as to endanger the safety and lives of defendant's employees, at work upon its trains and cars that might pass through said town of Paola, and along by said standpipe or crane; that said standpipe or crane was [200 Mo. 421] thus negligently erected and maintained by defendant so near to said track as that it was likely to strike and knock from their cars and...

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