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

• Decision Date: 01 February 1915
• Parties: LAURA BAKER, Plaintiff in error, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Defendant in Error
• Court: Kansas Court of Appeals

172 S.W. 1185

187 Mo.App. 157

LAURA BAKER, Plaintiff in error, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Defendant in Error

Court of Appeals of Missouri, Kansas City

February 1, 1915

Error to Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

Judgment reversed and cause remanded.

A. R Hammett for plaintiff in error.

(1) Under the Missouri construction of the common law there was a duty upon those operating the engine to be on the lookout for deceased. Dutcher v. Railroad, 241 Mo. 137; Murphy v. Railroad, 228 Mo. 56; Ahnefeld v Railroad, 212 Mo. 280; Sites v. Railroad, 197 Mo. 711; Holden v. Railroad, 177 Mo. 456; Kochenbrinck v. Railroad, 172 Mo. 678; Williams v. Railroad, 139 Mo.App. 481; Smith v Railroad, 129 Mo.App. 413. (2) In the absence of evidence to the contrary, the common law is presumed to be in force in Oklahoma. No evidence was offered in this case in the trial court. Supreme Council Order of Chosen Friends v. Garrins, 3 N.E. 818; Schalten v. Barber, 75 N.E. 460; Hodgkins v. Bowser, 80 N.E. 796.

Cowherd, Ingraham, Durham & Morse and W. F. Evans for defendant in error.

OPINION

ELLISON, P. J.

--Plaintiff brought her action for $ 7500 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 thirty 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 twenty-five 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 anyone and avoid injuring 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 2000 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 deceased party at time of his death was a non-resident of Oklahoma, the action may be brought by the widow. The petition then charges that deceased was a resident of New Mexico and that no personal representative had been appointed; and that plaintiff is damaged in the sum of $ 7500. It is then alleged that under these "statutes which constitute the Oklahoma law of this case, plaintiff is entitled to recover said amount of the defendant and is entitled to maintain this suit in her own name and is bringing this suit under said Oklahoma law." Judgment is then prayed in the sum stated.

The first objection stated to the petition is that it does not allege that defendant's servants in charge of the engine "saw, or by the exercise of ordinary care might have seen, Baker." It will be observed that the petition states facts making it the duty of the servants to be on the lookout; and that there was sufficient light (we quote) "to have enabled those in charge of the engine to have seen said Baker . . . in time to have averted striking him, by the use of reasonable care on their part, and by the use of the means at their command could have stopped said train before reaching Baker." But "that because of the negligent failure of those in charge of said engine to discharge their duties and because they negligently failed to see said Baker, . . . in time . . ., said Baker was struck and killed as herein set out."

The allegations might have been more direct, but we think it is charged that defendant's servants could have seen Baker had they been on the lookout and that they negligently failed to see him. The case is not like that stated by WOODSON, J., in Nivert v. Ry. Co., 232 Mo. 626. Omitted matter there is alleged here.

Defendant's argument would indicate that its servants, to make them culpable, should have reasonably expected that a drunken man would be lying on the track. That is not necessary. If the place is habitually used by the public, with the tacit consent of the railroad, as a place of crossing, or for pedestrians to walk along the track, it is sufficient. It may be that those in charge of an engine running through a town...