Cook v. Hines

• Decision Date: 05 December 1921
• Docket Number: NO. 13881,13881
• Parties: COOK v. HINES, Director General.
• Court: Missouri Court of Appeals

235 S.W. 156

COOK v. HINES, Director General.

NO. 13881

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by George O. Cook against Walker D. Hines, Director General, in charge of the Atchison, Topeka & Santa Fe Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Rogers & Yates, of Kansas City, for appellant.

Cyrus Crane, George J. Mersereau, and John H. Lathrop, all of Kansas City, for respondent.

TRIMBLE, P. J.

This is an action to recover damages for personal injuries. The plaintiff is a resident of the state of Kansas, and his cause of action arose there. He was a car carpenter, employed in the general yards of the Atchison, Topeka & Santa. Fé Railway Company at Argentine, Kan. On the morning of September 18, 1010, in broad daylight, the sun being up on a fine day, plaintiff, with his dinner pail on his arm and pipe in mouth, was going to his work in said yards. The yards were upon a level that was about 25 feet lower than the town of Argentine. Plaintiff's home was close to the yards, and he could have walked on the street, to and around the corner of the block, and reached his place of work in that way. Instead of doing this, however, he walked down a flight of steps leading to the level of said yards and to the main tracks of the said railroad, and from thence went north across the four main tracks, and also over and across some eight or ten switch tracks (all running east and west), till he came to one which led west directly to the place where his work was. Upon reaching this switch track, he turned west to go to his work, walking in a path made by the feet of employés which was so close to the rail of said tracks as to be on the ends of the ties thereof. There was space enough between this track and the next switch track for one to walk in, and the ground between the two tracks was covered with cinders deposited there and leveled off, and he could have walked out between the two tracks, but it was a little smoother where everybody else walked, and he naturally walked there.

This shows, however, that there was nothing in the nature of obstructions or in the lay of ground to prevent him from stepping to one side at any moment, if he chose to do so. When he reached the aforesaid point where he turned west, he looked in both directions, east and west; in fact he says he looked all around, but saw nothing on the tracks, except an engine standing and blowing off steam about 200 or 300 yards east of him. He walked west in the path along the track about 150 feet to a point where he says he stopped and looked back again, but still saw nothing except the same engine mentioned above. He then continued to walk west, without looking back, for about 20 steps, of 2 or 3 feet to the step, when he was struck by an engine coming behind him from the east on the track close to which he was walking. A moment before he was struck, the fireman on the engine whistled at him, individually or with his mouth, but plaintiff had only time then to get his head to one side and out of the line of danger when the crossbeam of the engine struck him in the side, knocking him down, bruising him somewhat where he was struck, and knocking out a tooth. He was very explicit in saying that he did not look back during the time he walked the last 20 steps, and says he heard nothing until the fireman whistled at him an instant before he was struck. He says, also, that during the time he walked the 150 feet, prior to the 20 steps he took, he kept glancing back to see if anything was coming, but saw nothing. He was about 58 or 59 years old and in the full possession of all his faculties. There was no evidence that the engine crew saw him until the instant before he was struck; in fact, the evidence tends to show that they did not see him until the moment the fireman whistled.

There were four charges of negligence in the petition: Operation of the engine at a highly dangerous rate of speed; failure to keep a reasonable lookout for persons on the track; failure to ring the bell or sound a warning on the engine; and, lastly, a violation of the humanitarian rule, or, as it should be more strictly termed in this case, the "last clear chance" rule. Of the four charges, only the last need be considered at length, since the other three are defeated by plaintiff's contributory negligence) in thus concededly choosing to walk so close to the track, and that, too, for the distance above mentioned, without looking back.

In addition to a general denial, pleas of contributory negligence, and assumption of risk, defendant's answer set up that—

"the accident on account of which this action was brought occurred in the state of Kansas, and that any right of action accruing therefor arose from and is given by the laws and decisions of the state of Kansas, and that under the decisions of the Supreme Court of the state of Kansas, constituting the law of said state as to the subject-matter of this action, the careless and negligent acts of said George C. Cook hereinbefore pleaded, and as occurring at the time and place of this accident, were and constituted such negligence on the part of the plaintiff as to be a complete bar to any right of recovery in this case, and that under said decisions of said Supreme Court of the state of i Kansas, which constitutes the law of said state as to the subject-matter of this action, no cause of action accrued to this plaintiff for or on account of said accident, and the plaintiff, by reason of the premises, is not entitled to recover in this action."

Plaintiff filed a general denial in reply. After plaintiff's case in chief had been introduced, the defendants asked a peremptory instruction directing...