Cook v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 05 April 1937
• Docket Number: No. 18851.,18851.
• Citation: 106 S.W.2d 38
• Court: Missouri Court of Appeals
• Parties: NELLIE V. COOK, RESPONDENT, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY.

106 S.W.2d 38

NELLIE V. COOK, RESPONDENT, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY.

No. 18851.

Kansas City Court of Appeals. Missouri.

April 5, 1937.

Appeal from Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.

REVERSED AND REMANDED (with directions).

Schultz & Owen for respondent.

Mayer, Conkling & Sprague for appellant.

SHAIN, P.J.

In this action the plaintiff seeks to recover from defendant damages for the death of her husband.

It stands admitted that defendant is a corporation and that it operates an interurban street car over its tracks between the City of St. Joseph and Savannah, Missouri. The accident involved happened in or near the town of Industrial City in Buchanan County, Missouri, and at a place where there was a custom of user by pedestrians on the defendant's railroad tracks.

In plaintiff's petition it is alleged that:

"On the 28th day of June, 1935, about 11:00 o'clock P.M. in the nighttime deceased was lying between the rails of said track in front of his said home and in a place of danger and imminent peril of being struck by one of defendant's interurban cars at the point where the track is located in front of deceased's home as aforesaid and deceased was oblivious to said peril and danger and that defendant and its employee in charge of said cars saw and knew, or, by the exercise of ordinary care, considering said user of said track as aforesaid and considering deceased's position on said track as aforesaid, could and should have seen and known of said peril and danger and that deceased was oblivious to the same in time thereafter by the exercise of ordinary care through the use of the means and appliances at hand without jeopardizing the safety of himself or others could have stopped said car before it struck and ran over deceased and killed him, but negligently failed to do so, and that by reason of said failure and negligence deceased was struck and run over by said interurban car and killed; that by reason of said negligence, plaintiff is entitled to a forfeiture and penalty in a sum not less than $2,000.00 and not to exceed $10,000.00."

Issue was joined by defendant filing a general denial and further answered as follows:

"Further answering said petition, defendant states the facts to be that at the time and place alleged in plaintiff's petition, Arthur B. Cook, the husband of plaintiff, had been and had become intoxicated, and that in such state of intoxication and while under the influence of intoxicating liquors, the said Arthur B. Cook negligently lay down upon the interurban track, that he negligently remained lying upon said interurban track in a drunken and insensible stupor, and that he negligently so remained upon said track without looking or listening for approaching interurban cars, when by looking he could have seen or by listening he could have heard said interurban car, in time to have gotten off of said track and to have avoided being struck by said interurban car; that each and every act of negligence above set out caused and contributed to cause the injuries and death of the said Arthur B. Cook."

Trial was by jury and jury returned verdict for plaintiff in the sum of $3,500. Judgment was had and entered in accordance with the jury verdict and defendant appealed.

Assignments of error as follows:

"I.

The court erred in admitting in evidence the results of experiments made subsequent to the accident regarding the visibility from the vestibule of an interurban car of a man's body lying between the rails in the roadbed at the place where deceased was run over.

"II.

"The court erred in refusing the instructions in the nature of demurrers offered by the defendant at the close of all the evidence.

"III.

"The court erred in making in the presence and hearing of the jury improper comments on the evidence and erroneous declarations as to the law, to defendant's prejudice.

"IV.

"The court erred in giving plaintiff instruction No. 1."

We will continue to refer to the parties, appellant as plaintiff and respondent as defendant.

OPINION.

It is shown by the evidence that the motor car in question on the night of the accident was traveling in a southwesterly direction and that for a distance of three hundred feet back from where the accident happened there was a straight track and that the motor car was equipped with a good headlight that projected its rays of light for a distance of three hundred feet ahead.

It is admitted, that the deceased was drunk and shown, "that deceased was lying flat on his back with his head turned on his right arm with his head to the south and that he had on a gray shirt and a pair of faded blue overalls." It is further shown that he was laying in this position between the rails of defendant's track.

The only eye-witness to the accident was W.R. Pinch, the motorman on said motor car at the time of the accident, 11:10 P.M. June 28, 1935.

The plaintiff called W.R. Pinch, aforesaid, as a witness and we set forth herein sufficient of his testimony to give a comprehensive understanding of the sum and substance of same.

On direct examination of Mr. Pinch the following appears:

"Q. Assuming Mr. Pinch that you understood that a man was lying on the track in front of Mr. Cook's house, state at what distance you could have discovered him or seen him? A. I could not have seen him any sooner than I did.

"Q. Sixteen feet? A. Sixteen feet.

"Q. Was there anything, any growth of any kind in the roadbed at that point where Mr. Cook was lying? A. Do you mean weeds?

"Q. Anything growing? A. Yes, sir, there was weeds in the track.

"Q. How many? A. Well, there was quite a few.

"Q. Was the roadbed covered with weeds? A. Yes, sir.

"Q. What effect, if any, did the weeds in the track have as to your ability to discover the body before you did? A. Well, he was laying down in the weeds and they were up about the height of his body, just kinda hid him.

"Q. Read the question (question read by the reporter). A. Well, they just hid him. They were up as high as his body.

"Q. You mean it prevented you from seeing him? A. Yes, sir.

"Q. Suppose that there had been no weeds there in the roadbed at that point, state whether or not you could have seen him any sooner than you did. A. Well, the color of his clothing kinda blended with the ground and the surroundings and it would have been impossible to have seen him any sooner.

"Q. Even though there were no weeds? A. Yes, sir."

On cross-examination, the following:

"Q. On this night as you were operating your car south from the — you know where Vey's is? A. Yes.

"Q. Is Vey's the curve just to the north of where you say Mr. Cook's house is? A. Yes, sir.

"Q. The curve in the track and the highway both? A. Yes, sir.

"Q. As you were coming down from Vey's up there, were you looking out ahead of your interurban car? A. Yes, sir.

"Q. Did you ever move your eyes from looking down the track in front of your interurban car? A. No, sir.

"Q. State if you were on the lookout, not only for people approaching your track but people, or things, on the track, as well? Were you on the lookout for things on the track? A. Anything that was on the track, yes, sir.

"Q. When you were up at Vey's or coming down from Vey's coming down towards Mr. Cook's home from Vey's, and when you got within say 300 feet of where Mr. Cook's body lay, could you distinguish his body lying on the track there? A. Not until I got within 16 feet of it, no sir.

"Q. I said when you were 300 feet away, could you distinguish it? A. No, sir.

"Q. Tell the jury why you could not distinguish it? A. Well, the position he was laying in in the weeds, and the clothing he had on blended with the ground and the weeds, and it was impossible to see him any sooner than I did. As I said before, if it had been my own mother, I could not have seen her.

"MR. SHULTZ: We object to his talking about his mother as having nothing to do with the case.

"THE COURT: Sustained.

"Q. Was there any distinguishing mark about his body, or on his clothing, which made him stand out in relief as against the rest of the color, or the terrain there between the tracks where he lay? A. No, sir.

"Q. And were you looking right ahead all of the time? A. All of the time, yes, sir.

"Q. When you were 300 feet away, was there anything at all to distinguish, to make his body stand out? A. No, sir.

"Q. As you approached a point closer than 300 feet, and moved from a point 300 feet away, up toward his body, were you looking all of the time then? A. Yes, sir.

"Q. Were you able then at all to distinguish his body from anything else that was there? A. No, sir.

"Q. Tell the jury why you could not? A. Well, from where it was in the weeds, laying in the weeds, he didn't move and didn't make any motion at all. I just could not see him any sooner than I did. It could not be done.

"Q. If he had been walking could you have seen him? A. Yes, sir.

"Q. If he had been sitting down, could you have seen him? A. Yes, sir.

"Q. If he had been up on his elbow, could you have seen him? A. Probably could, yes, sir.

"Q. Had it been reported to you that a man was lying there on the track? A. No.

"Q. Did you have any idea that anyone was lying there? A. No, sir.

"Q. Were you looking at all times to be sure there wasn't anyone on the track? A. Yes, sir.

"MR. SHULTZ: Do you mean lying?

"Q. Lying on the track when you were operating your car? Were you undertaking as well to determine if there was anything down on the track as well as up on the track? A. Yes, sir.

"Q. Did you see Mr. Cook's body there on the track? That is, just as quickly as it was possible for you to have seen it? A. I absolutely did.

"Q. And when you saw his body there on the track and could distinguish it, as a body, or as something, from the surroundings, tell the jury what you did? A. Just the instant I seen him I set my car in emergency.

"Q. By that you mean what, with regard to the brake, if anything? What...