Branstetter v. Chicago & A. R. Co.

• Citation: 225 S.W. 1035
• Decision Date: 03 November 1920
• Docket Number: No. 14950.,14950.
• Parties: BRANSTETTER v. CHICAGO A. R. CO.
• Court: Court of Appeal of Missouri (US)

225 S.W. 1035

BRANSTETTER v. CHICAGO A. R. CO.

No. 14950.

St. Louis Court of Appeals. Missouri.

November 3, 1920.

Appeal from Circuit Court, Pike County; E. B. Woolfolk, Judge.

"Not to be officially published."

Action by Henry Branstetter against the Chicago & Alton Railroad Company, revived, on death of plaintiff, in the name of Jeff D. Wright, as administrator of plaintiff's estate. Verdict for defendant, and from order granting a new trial defendant appeals. Reversed and remanded, with directions.

Scarritt, Scarritt, Jones & Miller, of Kansas City, W. O. Gray, of Bowling Green, and Pearson & Pearson, of Louisiana, Mo., for appellant.

Tapley & Fitzgerrell and Hostetter & Haley, all of Bowling Green, for respondent.

BIGGS, C.

While the above cause was pending in this court, the plaintiff died, and, after proper steps, the suit was revived in the name of Jeff D. Wright, administrator of the estate of Henry Branstetter, deceased.

This is a negligence case. The deceased, Branstetter, was injured by being run into by defendant's locomotive on a switch track within the city limits of Bowling Green; Mo. The negligence alleged is a violation of a speed ordinance of that city, and also facts are set up in the petition which call for the application of the humanitarian doctrine.

The answer was a general denial and a plea of contributory negligence, in that plaintiff at the time failed to watch out for the approaching train and avoid a collision therewith.

The trial judge at the conclusion of plaintiff's case sustained a demurrer to the evidence, holding that the facts as shown presented a case of concurrent negligence on the part of both parties, and that the evidence was not sufficient to authorize the application of the last chance or humanitarian rule. At the direction of the court the jury returned a verdict for defendant. Thereupon plaintiff filed a motion for new trial, specifying as grounds thereof: (a) Error in giving defendant's peremptory instruction; and (b) error in the admission of incompetent and the rejection of competent evidence. This motion was sustained by the trial court, but no reason was specified therefor, as is required by section 2023, R. S. 1909. From the order granting a new trial defendant appeals.

Assuming for the purposes of the case that the defendant's negligence was established, we state only such facts from the record as pertain to the plaintiff's contributory negligence.

Defendant's railroad runs for a short distance east and west through the northwestern portion of the limits of the said city of Bowling Green, and about a mile from the business portion thereof. The defendant's station house is situated on the south side of the main track. Some 300 yards east of the station the tracks of the St. Louis & Hannibal Railroad crosses those of the defendant on an overhead bridge. A switch, or what is termed a "transfer track," leaves the defendant's main track west of its station house, passes 12 to 15 feet to the south thereof, and proceeds on eastwardly until it joins a switch track of the St. Louis & Hannibal Railroad. By means of this track cars are transferred from one railroad to the other. Persons approaching defendant's station from the business portion of Bowling Green necessarily have to pass over this switch track, and a regular crossing is maintained for that purpose at the west end of the station. To the south of the station house, for perhaps a city block, and to the east thereof for some three city blocks, is an open common through which runs the transfer track. It was admitted that there was nothing to obstruct the view of one approaching the transfer track from the south.

At about the noon hour on the 16th day of January, 1911, Mr. Branstetter, who at that time was a man of 73 years of age, of good eyesight, but whose hearing was slightly impaired, was making his way towards the defendant's station for the purpose of taking a west-bound train. There is slight evidence in the record that at the time it was snowing but it could not be contended that one could not see the train, as all of the witnesses were able to see the train as it approached from the east over the transfer track. Mr. Branstetter did not cross the transfer track at the regular crossing maintained by the defendant at the west end of the station, but in approaching the station took...