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

• Decision Date: 14 April 1931
• Docket Number: 28125
• Citation: 37 S.W.2d 917,327 Mo. 658
• Parties: Ethel Beck v. Chicago, Rock Island & Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 917

327 Mo. 658

Ethel Beck v. Chicago, Rock Island & Pacific Railway Company, Appellant

No. 28125

Supreme Court of Missouri

April 14, 1931

Appeal from Jackson Circuit Court; Hon. Samuel A. Dew Judge.

Affirmed.

Luther Burns, Henry S. Conrad, L. E. Durham, Ilus M. Lee and Hale Houts for appellant.

(1) The court erred in not directing a verdict for the defendant. Henson v. Railway, 201 Mo. 426. (a) Deceased was as a matter of law guilty of negligence causing or contributing to cause his injury. Reeder v. Railway Co., 112 Kan 402; Bunton v. Railway Co., 11 Kan. 165; Wehe v Railway Co., 97 Kan. 794; Atkinson v. Ry. Co., 103 Kan. 446; Williams v. Ry. Co., 102 Kan. 268; Bush v. Railway Co., 62 Kan. 709; Turner v. Railway Co., 106 Kan. 591; Acker v. Railroad, 106 Kan. 401; Kirby v. Ry. Co., 106 Kan. 163; Gage v. Railway, 91 Kan. 253; Coleman v. Railway, 87 Kan. 190; Maris v. Railway, 98 Kan. 305; Rathbone v. Railway, 113 Kan. 257; Cooper v. Railway, 197 Kan. 703; A. T. & S. F. Ry. v. Willey, 60 Kan. 819; C. R. I. & P. Ry. v. Wheeler, 80 Kan. 187; Beech v. Railway, 85 Kan. 90; Crane v. Railway, 89 Kan. 472; A. T. & S. F. Ry. v. Withers, 69 Kan. 620; A. T. & S. F. Ry. v. Priest, 50 Kan. 16; Gaffney v. Railway, 107 Kan. 486; Degitz v. Railway, 97 Kan. 654; Losey v. Railway, 84 Kan. 224; Crary v. Investment Co., 313 Mo. 459; Degonia v. Railroad, 224 Mo. 596; Gabal v. Railroad, 251 Mo. 257; Kirkland v. Bixby, 282 Mo. 462; Hunt v. Railroad, 303 Mo. 107; Bruce v. Railroad, 271 S.W. 764; Riddell v. Railroad, 292 S.W. 713; Brockschmidt v. Railway, 203 Mo. 435; Van Dyke v. Railroad, 230 Mo. 259; Clancy v. Railroad, 192 Mo. 615. (b) Plaintiff was not entitled to recover upon the theory that deceased's peril was actually discovered in time thereafter to have avoided the accident. Gilbert v. Railway, 91 Kan. 711; Sullivan v. Railroad, 297 S.W. 950; State ex rel. v. Bland, 313 Mo. 253; Rashall v. Railroad, 249 Mo. 522. (c) Plaintiff was not entitled to recover upon the humanitarian or last-chance doctrine on the theory that deceased's peril should, by the exercise of ordinary care, have been discovered by the trainmen in time to have averted the accident. Turner v. Railway, 106 Kan. 599; Maris v. Railway, 98 Kan. 205; Coleman v. Railway, 87 Kan. 195; Bruce v. Railroad, 271 S.W. 762; Riddell v. Railroad, 292 S.W. 710; Degonia v. Railroad, 224 Mo. 596; Gabal v. Railroad, 251 Mo. 257; Kirkland v. Bixby, 282 Mo. 462; Hunt v. Railroad, 303 Mo. 107; Brockschmidt v. Railway, 205 Mo. 435; Van Dyke v. Railroad, 230 Mo. 259; Clancy v. Railroad, 192 Mo. 615. (2) Plaintiff's Instruction 1 was erroneous. If any alternative was unsupported, it was erroneous. Lackey v. Railways, 288 Mo. 147. (a) Regardless of any other consideration, it was error to authorize the jury to return the verdict upon the theory that plaintiff's peril was actually discovered by those in charge of the engine in time for the deceased's injury to have been averted. (b) Again, regardless of any other consideration, there was no evidence to support the hypothesis that by the exercise of ordinary care those in charge of the train "would" have discovered deceased's peril in time to have avoided the accident. (c) Finally, again regardless of any other consideration, it was error to permit recovery upon the hypothesis that deceased's injury could have been avoided by slowing down the train.

Clif Langsdale for respondent.

(1) The court properly denied defendant's request for a directed verdict. (a) Deceased was not guilty of negligence contributing to his death as a matter of law. Bentley v. Ry. Co., 78 Kan. 221; Dyerson v. Railroad Co., 74 Kan. 528; Riley v. Rys. Co., 256 Mo. 596; Comstock v. Ry. Co., 56 Kan. 228; Dowell v. Ry. Co., 83 Kan. 562, 112 P. 136; Day v. Ry. Co., 82 Kan. 704, 104 P. 172; Sullivan v. Ry. Co., 97 Mo. 113; Thomas v. Wells, 265 S.W. 46; Hubbard v. Ry. Co., 193 S.W. 579; Payne v. Railroad Co., 105 Mo.App. 79. (b) While it was not necessary under the doctrine announced by the Kansas cases heretofore cited, plaintiff was entitled to recover upon the theory that deceased's peril was actually discovered in time thereafter to have avoided the accident. Lynch v. Railroad Co., 106 S.W. 68; Payne v. Ry. Co., 136 Mo. 562. (c) Plaintiff was entitled to recover upon the humanitarian or last-chance doctrine on the theory that deceased's peril should, by the exercise of ordinary care, have been discovered by the trainmen in time to have averted the accident. Bentley v. Ry. Co., 78 Kan. 221; Dyerson v. Railroad Co., 74 Kan. 528; Sing v. Ry. Co., 30 S.W.2d 37. (2) Plaintiff's Instruction 1 stated the law of this case. Same citations as above.

OPINION

White, P. J.

The plaintiff brought suit against the appellant and the Kansas City Terminal Railway Company for damages on account of the death of her husband, Clifford O. Beck, killed by a train of the Chicago, Rock Island & Pacific Railway Company August 31, 1923, in Kansas City, Kansas.

Both plaintiff and defendant pleaded and quoted from a number of Kansas cases involving situations similar to the one here, so that we probably have under consideration all the rulings on the subject of the court of last resort in Kansas.

On a jury trial, September 29, 1926, in the Circuit Court of Jackson County at Kansas City, the plaintiff obtained a verdict and judgment for ten thousand dollars against the Chicago, Rock Island & Pacific Railway Company, the plaintiff having taken a nonsuit as to the Terminal Company. The Rock Island Company in due time and form appealed.

Two parallel tracks of the Terminal Company crossed a bridge over the Kaw River, the approach to which bridge began about three hundred feet east of the river, but west of the Kansas line. These two main lines are crossed at the point by other tracks, making "frogs" in the tracks. Westbound trains crossed on the north track and eastbound trains on the south track, on the ground level. Above the tracks over the bridge and approach was an upper deck. Clifford O. Beck, employed by Pratt-Thompson Company, with other workmen was engaged in stuccoing the upper deck of the approach, the stucco being blown upon the structure by sand-blowing machines. The sand and stucco which they were using fell from their work upon the track clogging the frogs, making it necessary for them each day to clean off the material which might impede the passage of trains. About 4:30 P. M., August 31, 1923, near quitting time, Beck with other workmen descended from the upper deck and began that cleaning. According to the evidence of the plaintiff, Beck was using a shovel when a train of the Rock Island Company coming from the east struck and killed him. The engine was headed east, the front being attached to a train of about fifteen cars. The engine, therefore, was running backward with the tender in advance. The train was running at from twelve to twenty miles an hour.

I. The appellant claims that the court erred in not directing a verdict for the defendant on the ground that Beck was guilty of negligence contributing to his death so as to preclude recovery under the law of Kansas.

The evidence of two or three witnesses for plaintiff showed that when Beck was hit he was in a stooping position between the rails of the westbound track with his back to the east, shoveling stucco. One witness, Elmer S. Brown, who saw Beck when he was struck, said no whistle was blown or gong sounded, nor any warning that he heard was given by anyone on the train, prior to the impact. It was not claimed that any whistle was sounded except at the intersection of the Santa Fe tracks some 300 feet or more east of the point. Two or three other witnesses engaged in the same work testified that they heard no bell rung, though defendant's witness swore it was ringing. Another train at the same time was passing on the eastbound track coming east just a few feet from where Beck was working. There was other machinery connected with the stucco work making rumbling sounds. The noise of the other train, it was said, would have prevented the workmen from hearing the train approaching from the east. The latter was described as coming along without making any noise. The witnesses did not see it until it was passing. "It was right along by me," one explained. "It was even with me before I seen it," said another. "It just came scooting in there; it wasn't making much noise," as still another described it.

Some of the other men came near being caught. They had to run down the track before they could get off. One of them in his hurry left his tools.

The Section-hand Rule which has been recognized in this State does not prevail in Kansas. The rule announced by the Kansas cases is that where one in the discharge of his duty is at work on a railroad track, although in a position of danger, whether he is negligent in failing to take such precaution as would apprise him of the approach of a train is a question for the jury. The same degree of diligence is not required of one whose duty compels his presence upon the track as is required by a traveler crossing a railroad track. [Railway Co. v. Bentley, 78 Kan. 224, 225; Dyerson v. Railroad Co., 74 Kan. l. c. 531; Dowell v. Railway Co., 83 Kan. l. c. 572-573.] In the case last cited it was said that where the workman in such position had reason to think that those in control of an engine knew of his presence and would give a warning before moving the engine upon him, the question whether he was guilty of contributory negligence was for the jury. See also Comstock v. Union Pacific Ry. Co., 56 Kan. 228; Riley v. Railroad, 256 Mo. l. c. 603.

Appellant cites a number of cases where persons crossing railroad tracks, not at work upon them, were held under the circumstances to be guilty of...