Allen v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 03 October 1932
• Docket Number: No. 17301.,17301.
• Citation: 54 S.W.2d 787
• Court: Missouri Court of Appeals
• Parties: ALLEN et ux. v. CHICAGO, R. I. & P. RY. CO. et al.

54 S.W.2d 787

ALLEN et ux. v. CHICAGO, R. I. & P. RY. CO. et al.

No. 17301.

Kansas City Court of Appeals. Missouri.

October 3, 1932.

Rehearing Denied November 21, 1932.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by A. L. Allen and wife against the Chicago, Rock Island & Pacific Railway Company and others. From a judgment for plaintiffs, defendants appealed to the Supreme Court, which transferred the cause to the Kansas City Court of Appeals [327 Mo. 526, 37 S.W.(2d) 607].

Affirmed.

Luther Burns, of Topeka, Kan., and Culver, Phillip & Voorhees, of St. Joseph, for appellants.

Mytton, Parkinson & Norris and O. L. Linck, all of St. Joseph, and Robison & Robison, of Maysville, for respondents.

TRIMBLE, P. J.

This is an action brought by plaintiffs (parents of Mary Wilma Allen, who at the time of the tragedy hereinafter set forth lacked 24 days of being 2 years old) to recover $10,000 for the alleged negligent killing of said child in the operation of defendant's train, shortly after noon of August 3, 1927.

The individual defendants are, respectively, the engineer and the fireman in charge of the train that struck and killed the child.

There was a verdict and judgment in favor of plaintiffs in the sum of $7,000. The defendants appealed to the Supreme Court on the theory that, in addition to other errors, a constitutional question had been raised and was in the case, but that tribunal thought otherwise, and transferred the case to our court, 327 Mo. 526, 37 S.W.(2d) 607.

Each defendant offered a separate demurrer to the evidence, which demurrers were all overruled, and the correctness of the court's action thereon is the most important point in the case. It is necessary, therefore, to state the testimony, together with all the inferences that can reasonably be drawn therefrom, in the most favorable light to plaintiffs.

The railroad runs in an easterly and westerly direction along the south side of the city of Maysville; the south line of the right of way being the southern city limits. The station or depot is on the north side of the track and immediately east of Water street, the main street leading from the south into said city, it being a paved thoroughfare with sidewalks. It is not thickly settled in the locality of the depot. Plaintiffs' house is about 887 feet east of the depot, and is from 150 to 200 feet north of the railway track.

And an unpaved road or street leads east from Water street along the north side of the right of way and between it and plaintiffs' home. At said home an east and west dirt road is intersected by an unpaved road running north into the city. Immediately east of plaintiffs' house is a path which extends therefrom south to and across the right of way. At a point, where this path crosses the ditch north of the railroad, timbers and ties have been thrown therein which formed a small bridge, or causeway so to speak, used by persons in going to and up defendant's track, and for many years persons living in the southeastern part of the city used this causeway and this path in going to and from the depot. Between the railroad and plaintiffs' home there had been, in former times, a fence, but this had been trampled down. With the permission of the railway company, plaintiffs had planted a garden on the right of way on the north side thereof. About 10 or 15 feet east of the point where the above-mentioned path came to the railroad track, there is a cattle guard. It was between this point where the path came to the track and the cattle guard on the track that the child was struck and killed by an east-bound freight train. Plaintiffs' home is north and a little west of the cattle guard. Between the depot and this cattle guard the track curves slightly toward the south. The track is slightly up grade toward the east; that is, higher than the street or roads adjoining the right of way on the north.

The vegetation had been removed for a distance of 6 or 8 feet on each side of the track. On other parts of the right of way there was a growth of grass and short, but no high, weeds. Looking east along the track, there was nothing to obstruct the view of the engineer and the fireman from a point one-quarter of a mile west of the station to a point east of the plaintiffs' home.

On August 3, 1927, the date of the killing, plaintiff Frankie Allen was at home with her four children, Maurine, age 11¼ years, Anna, 8, Carl, 5, and the deceased, Mary Wilma, nearly 2. The husband, A. L. Allen, was not at home until after the child had been struck. At some time between 10 and 11 that morning, Mrs. Allen went, with her four children, from her home north of the track to a point on the south side of the right of way to pick dew-berries. She carried Mary Wilma, who could have walked but was barefooted, and her mother carried her on this account lest she hurt her feet. They went to a place on the right of way a short distance west of the cattle guard, but remained only a short time, and then returned to the house about 11 o'clock. The mother busied herself about the house preparing a late dinner (at the early morning request of her husband) until about 1 o'clock, when the east-bound freight train, which struck and killed Mary Wilma, passed.

It seems that, after the mother and her children had returned from their first berry picking trip, Maurine and Carl "slipped out" of the house and again went across to the south side of the right of way to pick and eat berries at the place where they had been shortly before that day. Mary Wilma did not go with them. When last seen by her mother, she was on the porch of the home about 15 minutes, or "something like that," before the train passed. At this time when last seen by her mother, the latter gave Mary Wilma a small plate of berries to eat. (She had walked ever since she was 9 months old, and could talk "as plain as anybody," and her health had always been good.) The mother did not know Mary Wilma went, how she went, or with whom. In fact, the mother did not know the child had gone from the porch. She, being at work getting dinner as stated, heard the train go by, and knew it was a freight by the "racket" it made. Hearing the children, or rather Maurine, "hollering and crying" and "calling for mamma," she rushed out and found Mary "laying right by the ties, right at the edge of the ties" on the north side of the track, west of the cattle guard and "right at the path" hereinbefore mentioned. "She was laying face downward." With reference to the rail and ties, "she was laying right between two ties, touching the railroad track, the rail" on the north side. The train was "on down the track further." She could hear the roar of it, but she did not actually see it.

The foregoing presents the case in general outline, showing the physical situation and the surroundings at the time. Thus far, there is no evidence even tending to show when the child left the house and went to the railroad and to the point where she was struck nor the manner and speed of her going. No one saw her leave the house or saw her arrive at the railroad; and, with the exception hereinafter to be noted, no one saw her from the time the mother gave her the berries at the house, up to or just at or about the instant she was struck. Hence the demurrers were asked on the ground that there was no sufficient evidence to support a finding, or raise a legal inference, that the child was on or so near the track as to be in a situation of peril a sufficient length of time for the engineer and the fireman to have seen her and to have stopped the train before striking her.

Witness Asa Bridges is the one witness (constituting the exception above noted) who saw the child between the time her mother last saw her and the moment she was killed. This witness was 54 years old, had lived in Maysville 27 years; he had lived about 7 years at the time of the fatal accident in the southeast part of town, on the north and south street forming the junction, hereinabove mentioned, of the two unpaved dirt roads at the plaintiffs' house and north of said home. This witness testified to the fact that people, for at least 27 years, had been in the habit of walking on the track east from the depot up to the Allen home on the east; that the fence was down and the people went through the gate between the house and the barn on defendant Allen's property and out onto the railroad; the right of way fence being "down so you could go through." There had been a fence at one time, but "there was kind of a path and the fence was trampled down" to the bottom wire, which was about 8 or 10 inches high. Other witnesses testified to this user of the track by pedestrians.

Witness Bridges further testified that on the day in question he had been picking berries some distance east of the Allen home along the right of way; that he was there after dinner, having gone back about 1 o'clock; was there picking berries "just a short time" after dinner. He did not know the exact length of time he left there to go home, "couldn't say exactly," but that "I think it was between one and two o'clock." He left home about 1, and "didn't stay but a short time," "wouldn't know how long he picked berries" after dinner, "probably not over an hour. Maybe a little longer." Then he went back to the Cook place, and there entered the road along the north side of the right of way, and went west alongside of the right of way to the Allen house. He saw Mr. Allen's older girl, Maurine, and the little boy picking berries on the south side of the right of way east and south of the cattle guard. He said he also saw the little girl that got killed. "When I first saw her she was at the north line and had her hand down on the rail and stepped over one. When she got in the middle she straightened up and acted like she was coming back across the track.

"Q. What did you do? A. I stopped and looked at her a little bit. I saw this little girl ...