Candee v. Kansas City & Independence Rapid Transit Railway

• Decision Date: 12 July 1895
• Citation: 31 S.W. 1029,130 Mo. 142
• Parties: Candee v. Kansas City & Independence Rapid Transit Railway, Appellant
• Court: Missouri Supreme Court

31 S.W. 1029

130 Mo. 142

Candee v. Kansas City & Independence Rapid Transit Railway, Appellant

Supreme Court of Missouri, Second Division

July 12, 1895

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Karnes Holmes & Krauthoff for appellant.

(1) Where a party "failed to object to the court's instructions at the time they were given, he can not afterward be heard to complain." Lefkow v Allred, 54 Mo.App. 141. (2) "There was no exceptions saved to the giving of any instructions, and they need not be considered for that reason." State v Elvins, 101 Mo. 243. (3) "It is not allowed to a defendant to raise any objections to instructions, unless such party shows by the record that exceptions were taken at the time the instructions were given." Baker v. Railroad, 26 S.W. 20. (4) "A party wishing to avail himself of error in giving or refusing instructions must save his exceptions at the time they are given or refused, and it is too late to make his objections for the first time on a motion for a new trial." Dozier v. Jerman, 30 Mo. 216; Waller v. Railroad, 83 Mo. 608; State v. Kennade, 121 Mo. 405; State v. Cantlin, 118 Mo. 100. (5) The trial court erred in holding that defendant's first instruction was erroneous. Schexnaydre v. Railroad, 14 S. Rep. (La.) 513; Beach on Contributory Negligence, sec. 393; Maloy v. Railroad, 84 Mo. 270; Tyler v. Sites, 88 Va. 470.

Beebe & Watson for respondent.

(1) Plaintiff, in his motion for a new trial, challenged all the instructions given on behalf of defendant and the court had the power to set aside this verdict on its own motion, independent of the grounds urged in the motion for a new trial. Lovell v. Davis, 52 Mo.App. 347; Hewitt v. Steele, 24 S.W. 440; Milling Co. v. White Line Tr. Co., 26 S.W. 707. (2) Defendant's first instruction was erroneous when applied to the facts of this case. Beach on Contributory Negligence, sec. 394; Bunyan v. Railroad, 29 S.W. 842.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The defendant is a railway corporation and operated a railroad between Kansas City and Independence at the time of the injuries complained of in plaintiff's petition.

Plaintiff alleged that in June, 1889, while he was walking on defendant's track, it carelessly, negligently and wrongfully ran its engine and cars into and upon him and negligently failed to stop its said engine and train after discovering plaintiff in a situation of danger in time to have avoided injuring him, which could have been done by the exercise of ordinary care, and negligently failed to ring any bell or sound any whistle to warn plaintiff of the approach of said train, whereby he was greatly injured.

The answer was a general denial, and that whatever injuries he received were caused by his own negligence, in walking upon defendant's track at a point other than a crossing and while so walking was injured.

The cause was tried to a jury and the jury rendered a verdict for defendant. Plaintiff in due time filed his motion for a new trial which was sustained by the following order: "Now on this day come parties herein by attorney and the motion of plaintiff for a new trial being now taken up the same is by the court sustained, for the reason that the court erred in giving defendant's first instruction. To which ruling of the court said defendant excepts, and defendant now files affidavit for an appeal, which appeal is by the court allowed as prayed to the supreme court of Missouri and defendant is given ten days in which to file an appeal bond in the sum of $ 250 and ninety days in which to file bill of exceptions." In due time the appeal was perfected and the bill of exceptions signed and filed.

The evidence discloses that the defendant's railroad was a double track road. At the time of the accident the south track was not completed, and both east and west trains were using the north track.

Plaintiff testified that in June, 1889, he was walking from Kansas City to Washington Park on the left-hand track of defendant's railroad. He heard no train coming or any signal given. He testified he couldn't "hear quite as quick as some people and was a little hard of hearing," but had no trouble to hear railroad whistles at that time. Was sixty-two years old, and had on glasses when he was hurt; that if he had looked back toward the train he would most assuredly have gotten off.

Frank D. Walker, a witness for plaintiff, testified the accident occurred about 10 o'clock in the forenoon; "I think it was a clear day." Plaintiff was struck about four or five hundred feet east of a cut of defendant's road.

"Q. Did you see the train as it came out of the cut that you speak of? A. I heard it whistle and looked around and saw it when the train was about halfway out of the cut.

"Q. Where was plaintiff at the time you saw the train coming out of the cut. A. He was walking on the track.

"Q. Was plaintiff walking in the direction of, or away from, the cut? A. He was walking away from it.

"Q. State whether or not that cut is at or near the intersection of Ninth street in Kansas City? A. No; it is near Tenth street.

"Q. What was there, if anything, to prevent the engineer and fireman in charge of said train from seeing plaintiff walking on the track of said railroad. A. There was nothing that I know of.

"Q. State what, if any, signals were given by the fireman or engineer in charge of said train from the time the engine came out of said cut until it struck the plaintiff. A. The engine whistled after they left the cut.

"Q. At the time they whistled, as you state, how far ahead of the train was plaintiff. A. I suppose it was about three hundred feet, more or less."

Plaintiff introduced three locomotive engineers, who testified as to the distance in which defendant's train could have been stopped. Charles F. Kirby fixed the distance at one hundred feet; E. J. Murray at "within seventy-five or a hundred feet," and A. W. Dobson at "from eighty to one hundred and twenty feet."

Dr. G. C. Stemen attended the plaintiff and treated him for his injuries. He testified:

"Q. Doctor, if you know, please state whether or not there is any defect in Mr. Candee's hearing. A. Yes, sir.

"Q. Please state what it is. A. Well, he is what we call hard of hearing, more so in one ear than in the other, but I can not tell which ear it is.

"Q. Do you know how long he has been affected in that ear. Did he make any statement to you about that? A. Yes, sir.

"Q. It was prior to the injury, was it not? A. Yes, sir.

"Q. Can you state whether any other of Mr. Candee's senses are defective besides his hearing? A. That of sight.

"Q. To what extent? A. He was compelled to wear glasses most of the time. I don't know in regard to that. I don't know whether he is compelled to wear glasses in order to get around or not.

"Q. Do you know he generally wears glasses. A. Yes, sir.

"Q. But the extent of the defect of the eyes you do not know? A. I do not know. I have not examined his eyes and could not say."

Walton H. Holmes, president of defendant, testified that defendant bought its road in March, 1889, from the company which had constructed it. At that time "it was a very poor single track road." In April defendant commenced to put down a double track but at the time of the accident to plaintiff the south or right-hand track was not finished. "The north track was in a condition to operate on, and the other was not."

N. S. McKinney was a passenger on the train which struck the plaintiff. He testified:

"Q. What did you have to do with taking the plaintiff out from under the train? A. I helped to take him out.

"Q. Before he was struck and knocked down by the train, what did you hear, if anything, as to whistling or ringing of the bell? A. I heard both the ringing of the bell and whistling.

"Q. What time did that commence? A. Well, there was considerable of it done; I don't know hardly how long it was before, but there was considerable whistling, I know, just about the time of leaving the cut.

"Q. Now, so as to give the jury an idea of it, state as nearly as you can the nature of it? A. Well, it was rather loud, shrill whistling, because it made me think something was wrong, and I put my head out of the window to see what it was.

"Q. Have you heard whistling to alarm stock from the track? A. Yes, sir.

"Q. Was it anything like that? A. Yes, sir.

"Q. How much of this whistling and bell-ringing was there? A. Well, the train ran some little distance after it commenced before it stopped.

"Q. Was it once in a while, or continuous?. A. It was continuous.

"Q. You say so much so as to attract your attention? A. Yes, sir."

Mr. Peterson, a hotel keeper in Independence, was also a passenger. He was asked:

"Q. Before plaintiff was struck, state whether you heard any whistle, or any bell ringing. A. I think as we approached the mouth of the cut going north the bell began to ring. That is the usual custom at all crossings, and there is a crossing right ahead there. The bell began to ring, and then the whistle sounded, as if approaching cattle on the track, and it kept on and kept on, and I jumped out on the platform to see what it was, and we commenced to set the brakes right quick, and the last sound of the whistle was a long sound of the whistle, and he set the brake like he had hold of the whistle and the air at the same time. He was setting the air brakes and whistling all at the same time.

"Q. What attracted your attention? A. The continual whistling."

Two locomotive engineers were offered by defendant and testified as to the distance in which defendant's train could have been stopped. They both fixed the distance at one hundred and fifty feet.

W. E Reeves, who had...