Blain v. Missouri Pac. Ry. Co.

• Decision Date: 31 March 1916
• Docket Number: No. 17336.,17336.
• Citation: 184 S.W. 1142
• Parties: BLAIN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

184 S.W. 1142

BLAIN v. MISSOURI PAC. RY. CO.

No. 17336.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Appeal from Circuit Court, Jackson County; R. B. Middlebrook, Judge.

Suit by Harriet I. Blain, administratrix of J. C. Blain, deceased, against the Missouri Pacific Railway Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

J. C. Blain on June 17, 1908, was struck by defendant's passenger train in the town of Paola, Kan., and died a few days thereafter of his injuries. His wife, as his administratrix, has sued for $10,000 for his death under the Kansas statute. The trial court, after plaintiff's evidence was in, was about to give an instruction in the nature of a demurrer to the evidence, whereupon the plaintiff suffered an involuntary nonsuit with leave to move to set it aside; and after the necessary motions the cause is here on appeal.

Blain was in the lumber and furniture business at Centerville, Kan., at the time of his death, and had been in that business there about 6 years. He was in Paola about once a month. He was 44 years old, and in full possession of his faculties.

Peoria street, in Paola, runs east and west across the tracks of three railroad systems all parallel and lying within a strip of about 200 feet. About 24 passenger trains on those roads cross that street within that many hours, and many more freights. As those tracks are approached from the east the first is a switch of the defendant running to an elevator standing just west of Peoria street and just east of the switch. Next comes the main track of defendant. Between it and said switch on the north side of the street is a cobhouse used in connection with the elevator. The main track spoken of above curves round that cobhouse to the eastward. About four blocks north of Peoria street is the defendant's station. The regular passenger train was due there at 11:40 a. m. Just at noon Blain was proceeding west on the sidewalk on the south side of that street. When he had crossed the switch track and got within 8 or 10 feet of defendant's main track, had he looked westward, he could have seen a train on that main track a distance of 400 or 500 feet. The regular passenger train south bound left the station just at noon, gave two long and two short whistles when about 400 feet from Peoria street, and continued ringing the engine bell from that point until it crossed the street above named. Blain proceeded straight ahead without looking for the approach of any train. He...