Baker v. St. Louis & S. F. R. Co.

• Citation: 187 Mo. App. 157,172 S.W. 1185
• Decision Date: 01 February 1915
• Docket Number: No. 11386.,11386.
• Court: Court of Appeal of Missouri (US)
• Parties: BAKER v. ST. LOUIS & S. F. R. CO.

172 S.W. 1185

187 Mo. A. 157

BAKER v. ST. LOUIS & S. F. R. CO.

No. 11386.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

1. RAILROADS (§ 344) — ACCIDENTS AT CROSSINGS — PETITION — SUFFICIENCY.

A petition which alleged that plaintiff's husband was killed by defendant's train while lying unconscious from intoxication on the track at a place used by the public as a crossing, and that the engine which struck him carried a headlight which lighted the track for a distance sufficient for those in charge thereof to have seen her husband upon the track in time to have stopped the train, but, because of the negligent failure of defendant's servants to discharge their duty to keep a lookout, and because they negligently failed to see plaintiff's husband in time to have stopped the train, they ran upon and killed him, states a cause of action, though it does not expressly allege that the defendant's servants did see, or, by the exercise of ordinary care, could have seen, plaintiff's husband in time to have avoided injuring him.

2. RAILROADS (§ 338) — ACCIDENTS AT CROSSING — LOOKOUT — DRUNKEN PERSON.

A railroad company is liable for injuries to an intoxicated man caused by the negligent failure of its servants to look out for persons at a crossing habitually used by the public, where they might reasonably anticipate that persons would be, though they had no reason to anticipate that a drunken man would be lying there.

3. DEATH (§ 46) — PLEADING — PRESUMPTIONS — LAW OF STATE.

A petition for wrongfully killing plaintiff's husband in another state, the law of which authorized recovery by the wife, and which alleged a good cause of action under the humanitarian rule, is not demurrable for failing to allege that the common law was in force where the action accrued; since, in the absence of an allegation as to the foreign law, the Missouri law will determine the rights of the parties.

4. PLEADING (§ 408) — WAIVER OF DEFECTS — FAILURE TO STATE CAUSE OF ACTION.

The failure of a petition to state facts sufficient to constitute a cause of action cannot be waived, but the objection may be raised at any time.

Error to Circuit Court, Jackson County; J. A. Guthrie, Judge.

Action by Laura Baker against the St. Louis & San Francisco Railroad Company. From a judgment sustaining a demurrer to the petition, plaintiff brings error. Reversed and remanded.

A. R. Hammett, of Moberly, for plaintiff in error. Cowherd, Ingraham, Durham & Morse, of Kansas City, for defendant in error.

ELLISON, P. J.

Plaintiff brought her action for $7,500 as damages for defendant killing her husband in the state of Oklahoma. Defendant demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was sustained by the trial court, and plaintiff thereupon brought the case here by writ of error.

The petition alleges that on and prior to the 26th of October 1912, defendant operated its road through the town of Dawson, in the state of Oklahoma; that plaintiff is the widow of Frank Baker who, on that day, at about dark, while intoxicated, had fallen on the defendant's track at a place habitually used as a public crossing in said town, when he was killed by one of defendant's trains running upon him while in an unconscious condition; that the public made daily use of the place as a crossing with the knowledge and tacit consent of defendant; that it was about 600 feet from defendant's station building in said town, and only about 30 feet from a crossing sign maintained by defendant; that defendant's servants negligently and carelessly, while its locomotive and train were going at a speed of 25 miles an hour, ran over her said husband and killed him; that defendant, knowing of the habitual use of such place by the public, owed to deceased and the public a duty to keep a lookout to discover any one and avoid injurying him if it could be done by ordinary care; that the locomotive, as it approached the crossing, carried a headlight which lighted the track, for a distance of 2,000 feet, sufficiently for those in charge thereof to have seen Baker in his position upon the track, and to have known that he was oblivious to danger in time, by the use of ordinary care, with the means at hand to have stopped the train before reaching Baker; that because of the negligent failure of defendant's servants to discharge their duty to keep a lookout, and because they negligently failed to see Baker upon the track in the perilous position stated in time to have stopped the train, they ran upon and killed him.

The petition then charged that at the time of Baker's death there was a statute of Oklahoma (set out in the petition) giving an action for the death of a person to the personal representative of such person where the death was caused by the wrongful act of another, in all cases where the deceased may have maintained an action had he lived; that such statute provided that, where the...