Brown v. Wheelock

• Decision Date: 25 April 1935
• Docket Number: No. 29327.,29327.
• Citation: 83 S.W.2d 911
• Parties: BROWN et al. v. WHEELOCK et al.
• Court: Missouri Supreme Court

83 S.W.2d 911

BROWN et al. v. WHEELOCK et al.

No. 29327.

Supreme Court of Missouri.

April 25, 1935.

Motion for Rehearing Overruled June 5, 1935.

En Banc.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by William H. Brown and another against William H. Wheelock and another, receivers of the Chicago & Alton Railroad Company and another. Judgment for defendants, and plaintiffs appeal.

Reversed and remanded.

Atwood Wickersham, Hill & Chilcott, by O. S. Hill, all of Kansas City, for appellants.

Charles M. Miller, of Kansas City, for respondents.

GANTT, Judge.

This came to me on reassignment. Action to recover $10,000 for the death of William Brown, fourteen years of age, the son of plaintiffs. He was killed at a public crossing 3½ miles east of Independence by a train operated by defendant receivers. The track is the property of the Kansas City, St. Louis & Chicago Railroad Company, but leased to the Chicago & Alton Railway Company.

In substance, the petition alleged that at 10 p. m. on April 19, 1925, Brown boarded an eastbound freight train of defendants at Independence; that thereafter an employee of defendant, acting within the scope of his employment, negligently forced Brown from the moving train, thereby causing him to be injured, stunned, and dazed to such an extent that, in an unconscious condition, he went on defendants' track and was killed. It further alleged negligence under the humanitarian rule.

The answers were general denials with pleas of contributory negligence and other pleas unnecessary to notice. The replies were general denials. The trial court ruled that there was no substantial evidence tending to sustain the charge of primary negligence. The case was submitted under the humanitarian rule. Defendants do not contend that plaintiffs did not make a submissible case under said rule. Judgment for defendants, and plaintiffs appealed.

There was evidence tending to show the following: Brown was accompanied by Nelson Davis, thirteen years of age. At Independence they boarded a freight train moving 5 miles an hour and were seated on the platform at the front of the caboose when a brakeman appeared and inquired about their presence on the train. He told them they could not ride on that train. At that time it was moving 25 miles an hour. They told him they could not alight and asked permission to ride to the next station where they would buy tickets. He refused the request and shoved Brown while he was in the act of alighting from the train, thereby causing injuries to his knee, arm, and shoulder. Davis alighted without injury and went to Brown's assistance. He helped him from the ground and they climbed the embankment and went on the track. Brown suggested that they walk eastward on the track to Blue Springs, the next station. They proceeded to do so. Brown limped and complained of his shoulder. They sat on the track to rest four or five times. After walking 2½ miles, they came to a public crossing. They sat on the crossing to rest. Finally Brown lay between the rails. Later Davis did likewise. They fell asleep. At 1 a. m. an eastbound passenger train, moving 50 miles an hour, approached the crossing. The glare from the headlight awakened Davis when the engine was 400 yards west of him and could have been stopped, with safety to passengers, within 500 feet. Davis jumped to his feet and made several efforts to awaken Brown by "hollering" and shaking him. He was unable to do so and jumped from the track in time to escape injury. The train passed over Brown, thereby causing his death. Davis heard no sound...