Carton v. St. Louis-San Francisco Ry. Co.

• Decision Date: 11 March 1937
• Docket Number: 33313
• Citation: 102 S.W.2d 608,340 Mo. 531
• Parties: Harrison Lee Carton, a Minor, by His Next Friend, Charles O. Carton, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

102 S.W.2d 608

340 Mo. 531

Harrison Lee Carton, a Minor, by His Next Friend, Charles O. Carton, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 33313

Supreme Court of Missouri

March 11, 1937

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Reversed.

Joseph W. Jamison, Henry S. Conrad, L. E. Durham, Hale Houts and I. M. Lee for appellant.

The court erred in refusing to direct a verdict for the defendant at the close of all the evidence. Under the pleadings and the evidence defendant owed plaintiff no primary duty. There is not involved an injury at a public crossing. There was no duty by the railroad company to persons using the crossing. Plaintiff was at most a licensee. Gurley v. Ry. Co., 104 Mo. 227; Sites v. Knott, 197 Mo. 684; Savage v. Ry. Co., 328 Mo. 52; Carr v. Railroad Co., 195 Mo. 225; Frye v. Railroad Co., 200 Mo. 400; Ahnefeld v. Railroad Co., 212 Mo. 300; Hufft v Railroad Co., 222 Mo. 300; Pope v. Railroad Co., 242 Mo. 239; Shaw v. Railroad Co., 184 S.W. 1153; Dalton v. Ry. Co., 276 Mo. 679. If it be assumed that defendant was chargeable with primary negligence, the plaintiff was as a matter of law precluded from recovery on account thereof by his contributory negligence. Dyrez v. Railroad Co., 238 Mo. 46; Riddell v. Railroad Co., 292 S.W. 710; Steele v Railroad Co., 265 Mo. 97; Koegel v. Railroad Co., 181 Mo. 397; Sublette v. Terminal Railroad Assn., 267 S.W. 630; Riddell v. Railroad Co., 316 Mo. 967; Hook v. Ry. Co., 162 Mo. 584; Graney v. Ry. Co., 157 Mo. 679; Payne v. Railroad Co., 136 Mo. 593; Kelsay v. Ry. Co., 129 Mo. 372; Monroe v. Railroad Co., 297 Mo. 646; Henderson v. Ry. Co., 314 Mo. 437; Spillane v. Ry. Co., 135 Mo. 428; Schmitt v. Ry. Co., 160 Mo. 58; McGee v. Railroad Co., 214 Mo. 547; Corner v. Ry. Co., 89 S.W.2d 953.

Kennard & Gresham, F. M. Kennard and Walter J. Gresham for respondent.

(1) Defendant's negligence was proved. Plaintiff was crossing over defendant's switch tracks at a place where the public had traveled for many years with the knowledge and acquiescence of the defendant; its employees kicked a car over the crossing, uncontrolled, unattended, without having a watchman and without giving any warning. Savage v. Ry. Co., 328 Mo. 44, 40 S.W.2d 628; Cotner v. Ry. Co., 220 Mo. 284, 119 S.W. 610; Ahnefeld v. Railroad Co., 212 Mo. 280, 111 S.W. 95; Dutton v. Ry. Assn., 292 S.W. 718; Gurley v. Ry. Co., 122 Mo. 141; Waite v. Ry. Co., 168 Mo.App. 160, 153 S.W. 66; Beard v. Ry. Co., 272 Mo. 142, 196 S.W. 907; O'Connor v. Ry. Co., 94 Mo. 150; Stevens v. Ry. Co., 67 Mo.App. 356; Baker v. Ry. Co., 147 Mo. 140; Jaffe v. Railroad Co., 205 Mo. 450, 103 S.W. 1026; Pinney v. Railroad Co., 71 Mo.App. 577; Nicholson v. Railroad Co., 297 S.W. 996; 52 C. J., pp. 176, 222. (2) Contributory negligence was for the jury. (a) Plaintiff had looked. Campbell v. Ry. Co., 175 Mo. 161; Hart v. Ry. Co., 264 S.W. 902; Dyer v. Ry. Co., 25 S.W.2d 508. (b) Defendant's plea was insufficient. Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Heriford v. Rys. Co., 220 S.W. 899. (c) The danger was not obvious. (d) Passing a standing car is not negligence. Mills v. Ry. Co., 199 Mo. 56, 94 S.W. 973; Petty v. Railroad Co., 88 Mo. 306; Fusili v. Ry. Co., 45 Mo.App. 535; Lawrence v. Railroad Co., 258 S.W. 54; Ill. Steel Co. v. Szutenbach, 64 Ill.App. 642; Pinney v. Railroad Co., 71 Mo.App. 577; Tibbels v. Railroad Co., 219 S.W. 109; Wilder v. Railroad Co., 164 Mo.App. 114, 146 S.W. 837; Chi., etc., Ry. v. McGrath, 107 Ill.App. 100; Waite v. Ry. Co., 168 Mo.App. 160, 153 S.W. 66; Hart v. Ry. Co., 264 S.W. 902.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This case, coming to the writer on reassignment, is an appeal, by the St. Louis-San Francisco Railway Company, from a judgment in respondent's favor in the sum of $ 12,500. In the course of the opinion appellant will be referred to as the railroad, and respondent as plaintiff. Plaintiff sued the railroad to recover damages for injuries alleged to have been sustained when he was struck by a railroad car as he attempted to cross the track of the railroad in the yards at Carthage, Missouri. The suit was filed and tried at Kansas City, Missouri.

At the close of all the evidence the railroad offered an instruction directing the jury to return a verdict in its favor, which was refused by the trial court, and this ruling was preserved for our review. Plaintiff's evidence, giving it every favorable inference warranted, discloses substantially the following state of facts. Plaintiff was sixteen years of age at the time he received the injury complained of. He lived with his parents in Carthage, a short distance from the scene of the accident. On July 25, 1930, at about three P. M., plaintiff intended to go swimming in a creek, located to the north of the railroad tracks. Plaintiff lived south of the tracks. In going to the creek plaintiff followed a path toward the railroad tracks, and the evidence most favorable to plaintiff justifies the statement that this path led across the railroad tracks to the north, and for a number of years had been used by many people as a footpath, also, that the railroad had knowledge of this fact. The evidence disclosed that at this point there were three parallel tracks, that is, a passing track on the north, a main line track in the center and a coal track to the south. There were also a number of service tracks branching off both to the north and south from the main line. The accident occurred on the south, or coal track, about one hundred feet or more to the east of a small building, referred to in the evidence as the fertilizer house. When plaintiff reached the coal track he noticed two boys in a railroad car gathering wheat which had been left in the car. Plaintiff testified that there were two cars standing upon the coal track. The one the boys were in was standing across the pathway he intended to follow. Plaintiff further testified that he talked to these two boys about two or three minutes and then proceeded to the west end of the car and across the track; that at the moment he placed his foot upon the first or south rail there was a collision and the car struck him. The wheel of the car caught his foot and crushed it. Infection followed and plaintiff's foot was amputated a few inches below the knee. Plaintiff testified that after the accident he saw a third car upon the coal track to the east of the two cars, and it was this car that had rolled down the coal track and collided with the cars on the path and caused them to move to the west. The evidence disclosed that the three tracks mentioned above ran to the east from the point of the accident in a straight line so that cars could be seen upon the coal track from any point where plaintiff was before the accident, until he stepped behind the car.

We have come to the conclusion that plaintiff's own evidence convicts him of negligence as a matter of law. We quote the portions of evidence pertinent to this issue, as given by plaintiff and his witnesses.

Willard Ambrose, one of the boys who was in the railroad car at the time of the accident, testified as follows:

"Q. Were you down in the yards on July 25th, 1930, when Harrison Carton was hurt? A. I was.

"Q. Where were you at the time? A. At the time he was hurt?

"Q. Yes. A. In a box car, picking up wheat. . . .

"Q. Now, while you were there in the cars, or car, who came up? A. Harrison.

"Q. Harrison Carton? A. Yes, Harrison Carton.

" Q. And, did you talk with him? A. Me? -- I didn't talk with him; Russ. Hatcher did.

"Q. Who did? A. Russ.

"Q. He and Russell were talking together? A. Yes, sir.

"Q. Did he stay there very long? A. Well, no.

"Q. Then, did he leave? A. He left, yes.

"Q. What was the next thing that came to your attention? A. The next thing that came to my attention was a jolt.

"Q. What sort of a jolt? A. A heavy jolt.

"Q. I think you said you had been down around the yards considerably? A. I have.

"Q. Have you heard box cars bump together? A. I have.

"Q. And, describe the sound that came when this jolt came -- what was it like? A. A couple hitting together, a slam, and the brakes and wheels kind of squeaking.

"Q. What did it do to you? A. Throwed me on the floor.

"Q. It throwed you on the floor, very hard? A. Skinned me up, on my arms.

"Q. What did you next notice or hear? A. I heard Harrison, or some boy, I didn't know who at the time being, hollering.

"Q. What did you do then? A. I jumped out of the car and ran up to him."

On further examination he testified:

"Q. Did you hear an engine working in the yards, when switching was going on, after you got into the car? A. I did.

"Q. You could hear it moving around? A. Switching in the yard.

"Q. You could hear cars moving? A. Yes, sir.

"Q. Where was the engine you heard? A. Which direction, I don't know. . . .

"Re-Direct Examination by Mr. Gresham.

"Q. When had you heard that engine? A. Oh, just a little bit after I got in the car.

"Q. You didn't hear it just before Harrison was hit, did you?

"Mr. Lee: Objected to as leading.

"The Court: Objection sustained.

"Q. Did you hear it just before Harrison was hit? A. I heard it before he was hit, yes.

"Q. I mean at the instant he was hit? A. No, I don't remember whether I did or not.

"Recross-Examination by Mr. Lee.

"Q. You say you don't remember whether you did or not? A. No.

"Q. Did you hear the cars moving around, or being switched? A. Before Harrison was hit?

"Q. Yes, sir. A. I heard them then, yes, sir.

"Q. You heard the cars moving? A. Yes, sir.

"Q. The rumbling of the cars? A. Yes, sir, but it was at a great distance; must have been, because I could not hear them very good."

Plaintiff testified as follows:

"Q. Then, while...