Engelking v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 14 March 1905
• Citation: 187 Mo. 158,86 S.W. 89
• Parties: ENGELKING v. KANSAS CITY, FT. S. & M. R. CO.
• Court: Missouri Supreme Court

86 S.W. 89

187 Mo. 158

ENGELKING v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 2.

March 14, 1905.

RAILROAD — INJURY TO PERSON ON TRACK — CONTRIBUTORY NEGLIGENCE.

1. Where plaintiff's evidence shows circumstances of contributory negligence which defeat his right of recovery, defendant may take advantage thereof, though the plea of contributory negligence was stricken out.

2. Evidence that plaintiff passed through defendant's railroad yards in the night, and out on the track, knowing that a regular train would soon follow, and that he did not look back or to the side, but went forward, with his head down, until he was struck, shows contributory negligence which prevents his recovery for injuries; there being no evidence that those in charge of the train could have seen him, by the exercise of ordinary care, in time to have avoided his injury.

3. Leading questions, as a rule, are not permissible.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action for personal injuries by Herman Engelking against the Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Wright Bros. & Blair, for appellant. L. F. Parker and Woodruff & Mann, for respondent.

BURGESS, P. J.

Plaintiff brought this action to recover of defendant damages on account of personal injuries sustained by him by reason of the negligence of defendant. The petition alleges that about 10:45 o'clock p. m., on or about the 6th day of June, 1901, he was walking westward on defendant's road, about one-half mile west of defendant's passenger depot in the city of Springfield, Mo.; that a certain locomotive and train of cars were drawn at a rapid rate of speed along and upon said railroad of defendant, in a westwardly direction, to the place where plaintiff was walking, and that at said place the said roadbed was straight for a long distance east and west therefrom, and which for many years prior to June 6, 1901, pedestrians to and from said depot had been accustomed to use as a road and foot path by the forbearance and tacit consent of the defendant; that defendant's employés, agents, and servants in charge of and operating said train, seeing, or, by the exercise of reasonable care and diligence, had they not been reckless in operating said train, could have seen, the dangerous position in which plaintiff was situated, and seeing, or, by the exercise of reasonable care and diligence, if said train had not been recklessly operated by defendant's agents and servants in charge thereof, could have seen, the imminent peril in which the plaintiff was placed, and that plaintiff was unaware of the near and dangerous approach of said train, negligently failed to sound the usual and ordinary signal in time to avert the injury herein complained of, and in fact did not at any time before the injury to plaintiff either ring the bell, sound the whistle, or give any other signal by which the plaintiff might be warned of the near and dangerous approach of said train, and negligently failed to use the brakes and other appliances provided for stopping said train made up as aforesaid, and negligently failed to use the appliances provided and at hand for placing said train under control and stopping same before it struck and wounded and injured plaintiff, but, on the contrary, thereof recklessly, negligently, willfully, and wantonly ran its train with great force and violence against the plaintiff, and wounded, bruised mutilated, mangled, and cut his left leg below the knee, and so nearly cut said leg off that it was necessary to have said leg amputated, that plainti...