Carlson v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 02 June 1916
• Docket Number: No. 17905.,17905.
• Citation: 187 S.W. 842
• Court: Missouri Supreme Court
• Parties: CARLSON et al. v. ATCHISON, T. & S. F. RY. CO.

187 S.W. 842

CARLSON et al. v. ATCHISON, T. & S. F. RY. CO.

No. 17905.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Rehearing Denied July 3, 1916.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Anton Carlson and another against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Action by the husband and child of Ida Carlson for the alleged negligent killing of the said Ida, by one of defendant's passenger trains at a road crossing at or near Le Loup, Kan. The action is predicated upon Kansas statutes and their construction in the state of Kansas by its Supreme Court, which statutes and decisions are specifically pleaded. The negligence charged in the petition runs thus:

"On or about the 20th day of October, 1911, in said Franklin county, and at the western edge of said Le Loup, while Ida Carlson, the wife of (Anton Carlson, and mother of Hulda Carlson) was driving a horse hitched to a buggy in which she was riding on a public highway across said railroad, defendant ran a locomotive drawing a west-bound passenger train against her, whereby she was killed. Said death was caused by defendant's negligence in the following respects: Defendant did not sound a whistle of said locomotive or give any other warning of its approach at least 80 rods from said crossing nor at any other point so as to give reasonable warning of the approach of said train. Defendant ran said train at a speed so great that deceased did not have reasonable opportunity to escape after she could have discovered its approach. Although the place where (said wife and mother) was killed was a regularly laid out public highway where it was crossed by a number of defendant's tracks, defendant had not restored the highway to such state as not to unnecessarily impair its usefulness, and had not constructed and had not kept in repair a good and substantial crossing, and had not secured on each side of each rail of its railroad a board not less than 12 feet long and not less than 10 inches wide and 2 inches thick, nor a board of any other character, and had not filled the space between its rails nor any part of said space with gravel or broken stones, nor floored the space with boards of any kind, by reason of which omissions the vehicle in which deceased was riding was caught in and impeded by the ties, rails, and uneven surface of said railroad and depressions of the spaces between said rails and tracks, whereby she was prevented from getting out of the way of the approaching train."

The answer was (1) a general denial, (2) a plea of contributory negligence, and (3) another defense, which in our view of the law and facts of this case need not be described or set out. Reply general denial of all new matter in the answer. Verdict was for plaintiff in sum of $7,500, and from the judgment entered thereon the defendant has appealed.

The trial court by instruction took from the jury the alleged negligence of failure to warn, as charged in the petition, and submitted the case solely on the negligent rate of speed at which the train was being run at the time and place of the accident. This was submitted, as it was pleaded, as common-law negligence; the trial court having declared that no rate of speed had been fixed either by law or ordinance. The instruction reads:

"The court instructs the jury that the amount of care required of a railroad company in operating a train as it approaches a public highway crossing is proportionate to the particular circumstances of the particular crossing, and what might be due care with reference to the speed at one crossing is not necessarily due care with reference to the speed at another crossing, and, with reference to the highway where Ida Carlson was killed, it was the duty of the defendant to use ordinary care to operate all its trains approaching the crossing of said highway at a rate of speed which, under the particular circumstances shown in the evidence to exist there, would be reasonably consistent with the safety of travelers upon the highway, who are themselves using ordinary care for their own safety, and not to operate its trains at a speed so great that such travelers would not have reasonable opportunity to escape injury to their property or themselves after they could by the exercise of ordinary care discover the approach of defendant's trains to the crossing."

The question of the contributory negligence was likewise submitted to the jury. Defendant demurred to the testimony...