Burnett v. Atchison, Topeka & Santa Fe Railroad Co.
| Decision Date | 01 March 1913 |
| Parties | CLARENCE BURNETT et al., Respondents, v. ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted January 7, 1913.
Appeal from Scotland Circuit Court.--Hon Charles D. Stewart, Judge.
REVERSED.
Judgment reversed.
Thomas R. Morrow, James P. Gilmore, N. M. Pettingill and John H Lathrop for appellant.
Even though the defendant was negligent, the evidence shows such negligence on the part of deceased contributing directly to his death as to bar a recovery in the case and defendant's demurrer to the evidence should have been sustained. Laun v. Railroad, 217 Mo. 563; Burge v. Railroad, 148 S.W. 925; Newton v. Railroad, 152 Mo.App. 167; Higgins v. Railroad, 197 Mo. 300; Harlan v. Railroad, 64 Mo. 480; Butts v Railroad, 98 Mo. 272; Green v. Railroad, 192 Mo. 131; Giardina v. Railroad, 185 Mo. 330; Schaub v. Railroad, 133 Mo.App. 444; Duncan v Railroad, 46 Mo.App. 198; Lien v. Railroad, 79 Mo.App. 475; Jones v. Barnard, 63 Mo.App. 501; Drake v. Railroad, 51 Mo.App. 562; McGee v. Railroad, 214 Mo. 530; Caldwell v. Railroad, 58 Mo.App. 453; Yancey v. Railroad, 93 Mo. 433; Boyd v. Railroad, 105 Mo. 371; Moore v. Railroad, 176 Mo. 528; Kelly v. Railroad, 75 Mo. 138; Harlan v. Railroad, 65 Mo. 22; Reno v. Railroad, 180 Mo. 470; McCreery v. Railroad, 221 Mo. 18; Van Bach v. Railroad, 171 Mo. 338; Guyer v. Railroad, 174 Mo. 344; Watson v. Railroad, 133 Mo. 246; Schmidt v. Railroad, 191 Mo. 215; Boring v. Railroad, 194 Mo. 541; Markowitz v. Railroad, 186 Mo. 350; Peterson v. Railroad, 156 Mo. 552; Stotler v. Railroad, 204 Mo. 619; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 4; Mockowik v. Railroad, 196 Mo. 550; Sanguinette v. Railroad, 196 Mo. 466; Moody v. Railroad, 68 Mo. 470; Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 569; Walker v. Railroad, 193 Mo. 453; Zimmerman v. Railroad, 71 Mo. 476; Henze v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 602; Hixon v. Railroad, 80 Mo. 335; Fox v. Railroad, 85 Mo. 679; Huggart v. Railroad, 134 Mo. 673; Porter v. Railroad, 199 Mo. 82; Fletcher v. Railroad, 64 Mo. 484; Lenix v. Railroad, 76 Mo. 86; Stepp v. Railroad, 85 Mo. 229; Lennon v. Railroad, 198 Mo. 514; Petty v. Railroad, 179 Mo. 666; Matz v. Railroad, 217 Mo. 275.
Hughes & McCord and E. R. McKee for respondents.
(1) No person is assumed to be in fault until his fault appears, and in case of personal injury, its justice is reinforced by its accord with the natural instincts of self-preservation and fear of pain, maiming and death. Railroad v. Langdrigan, 191 U.S. 461; Railroad v. Aderhold, 58 Kan. 293; Norton v. N. C. R., 122 N.C. 910; Grant v. Becker, 12 Ore. 329. To hold otherwise would be to assume negligence on the part of one in excuse of negligence on the part of the other. Hanlon v. Railroad, 104 Mo. 381. So we say it was for the jury under all the facts and circumstances in this case to determine whether or not plaintiffs could recover and the court cannot as a matter of law say he cannot. Contributory negligence in this State is an affirmative plea on the part of the defendant, and when the negligent acts of the defendant have been shown it is the province of the jury to determine whether such presumption of negligence has been overcome or not. Seska v. Railroad, 77 Iowa 137. (2) Where it appears that a person run down by railroad cars would by the exercise of due care, have avoided such injury a presumption of contributory negligence may ordinarily be presumed but where a view along the track is obscured such presumption does not arise. 8 Ency. of Evid. 897; Schum v. Railroad, 107 Pa. St. 8; Baker v. Railroad, 147 Mo. 140.
--Plaintiffs, as next of kin of their brother, Elbert Burnett, bring this action against the railroad company under the law of the State of Kansas which provides, in substance, that when the death of one is caused by the wrongful act or omission of another, the next of kin, when no personal representatives had been appointed, the deceased having been a resident of that State at the time, may maintain an action for the death, if the one killed could have maintained an action had he lived against the company for injury for the same act or omission. Such action must be commenced within two years; the damage recoverable not to exceed ten thousand dollars, and the recovery must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. [See Dassler's Compilation (1899) General Statutes Kansas, secs. 4686 and 4687.]
Burnett left no parents nor children, as is averred, nor was there any administration on his estate. Alleging that the killing of Elbert Burnett occurred through the wrongful act of defendant in running one of its trains through the city at a very high and unlawful rate of speed and without proper headlights and without ringing a bell or sounding a whistle, in violation of an ordinance of the city, and while the deceased was going along the sidewalk of a public street in the city that crossed defendant's track, defendant's train by which he was killed then going across that street at the unlawful and reckless rate of about sixty miles an hour, damages are demanded in the sum of two thousand dollars.
The cause was tried to a jury in the circuit court and a verdict returned in favor of plaintiffs in the sum of $ 2000, judgment following. Interposing a motion for a new trial as well as one in arrest and saving exceptions to the action of the court in overruling these, defendant has duly perfected its appeal to this court.
The contention of counsel for appellant is that on all the evidence in the case the court should have directed the jury that plaintiffs could not recover. If this contention is correct, there is no occasion to examine into the other points made by the learned counsel on either side.
According to evidence given on behalf of plaintiffs in this case Elbert Burnett, himself a young man, with one or more other young men, were at the house of one Brunk, a friend, in Nickerson, Kansas, on Thanksgiving Day, 1908. Nickerson is a small city or town of ten or fifteen hundred inhabitants. Young Burnett was working at a farm outside of Nickerson but at the time was living with one Maize, whose house was about a fourth of a mile from town. He and Maize went to the house of Brunk, on Main street, and the three of them went from there and along that street, which crosses the railroad tracks, to a restaurant on Main street about one hundred and fifty feet north of the tracks of defendant, Brunk's house being a short distance south of those tracks. Intending to leave their homes and go to the farm or farms on which they were employed early the following morning, and wanting to buy tobacco, they went over to the restaurant that night to do so, knowing that and other stores would not be open early the next morning. They started from Brunk's house and reached this restaurant between seven and eight o'clock of Thanksgiving night. They all wanted to make the trip and get back to Brunk's house for a contemplated party to be held there that night as quickly as possible--"were in a hurry to get back," said witnesses. To reach the restaurant from Brunk's they went along Main street and crossed the railroad track at the place at which the accident afterwards happened. Reaching the restaurant, they bought their tobacco. Brunk left the restaurant first, Burnett and Maize stopping in it a moment or two longer to light their pipes. There was a small building on Main street immediately adjoining the restaurant on the south which covered about thirty feet front along Main street, and was the only building between the restaurant and the depot of defendant. The depot is about forty feet west of the sidewalk along Main street. A short distance, about eighty or ninety feet, south of the restaurant was a cross street and between that cross street and the depot was what is called "a house track" of the railroad company, on which several box cars were in place at the time. After one passed the house adjoining the restaurant one could see west up the track of the defendant company for several hundred yards unless standing so that these cars on the house track intervened, and until you reached the depot. When you were directly to the east of that, of course the view toward the west was cut off. The house track was parallel with the depot and at a right angle to Main street. There was a tool house on the line of the railroad about four hundred yards west of the depot; also a small coal house some hundred and fifty feet west of the depot and along the railroad track. Brunk, walking along Main street after leaving the restaurant and passing the adjoining building, was overtaken by Burnett and Maize, who were either walking at a very rapid gait or running. The weight of defendant's testimony is that they were running, young Burnett outstripping Maize. As Brunk was walking along and had reached the south side of the cross street--about sixty feet from the depot--he saw a black body, "a dark body," which he took to be a train, coming rapidly along the railroad track from the west. He called out to the two young men to wait, to stop, and Maize stopped. They had passed Brunk just before he saw this black object, and it was then he called to them. Maize stopped about sixty-five or seventy-five feet from the main track. Burnett was then about twenty-five or thirty feet ahead of Maize and kept on until reaching and trying to cross the track, he was hit by the...
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