Fabac v. St. Louis & San Francisco Railway Company

• Decision Date: 11 July 1925
• Docket Number: 25,762
• Citation: 237 P. 1019,119 Kan. 58
• Court: Kansas Supreme Court
• Parties: VINCO FABAC, Appellee, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant

237 P. 1019

119 Kan. 58

VINCO FABAC, Appellee, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant

No. 25,762

Supreme Court of Kansas

July 11, 1925

Decided July, 1925.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Wantonness--Pleading, Proof and Variance--Instructions--Verdict. The proceedings in an action for damages resulting from collision of a switch engine with a motor truck, considered, and held: (1) The petition charged wantonness. (2) Defendant may not complain of a variance between pleading and proof, if there was variance, because defendant did not show it was misled. (3) Defendant may not complain of an instruction given the jury which was too restricted, because defendant did not request that the instruction be improved. (4) The verdict was sustained by the evidence.

A. L. Berger, of Kansas City, L. E. Durham, Henry S. Conrad, Hale Houts, Joseph A. Guthrie, all of Kansas City, Mo., and W. F. Evans, of St. Louis, Mo., for the appellant.

David F. Carson and James T. Cochran, both of Kansas City, for the appellee.

Burch J. Burch J., Dawson J., dissenting.

OPINION

BURCH, J.:

The action was one by an ice peddler to recover damages for injury to his Ford motor truck received in a collision with one of defendant's locomotives. Plaintiff recovered, and defendant appeals.

Along the north side of the general office building of Armour and Company in Kansas City is a street known as railroad alley, which extends from east to west. Opening on railroad alley from the north, but not crossing it, at least for traffic purposes, is Ewing street, which leads into the Armour plant. Because of the hogpens on its east side, it is called "hogpen alley," and is closed by a gate. Defendant has a track which enters railroad alley from the east, extends westward along the south side of the street, and curves northward across the street into hogpen alley. Some distance east of hogpen alley and on the north side of railroad alley is the Armour ice house, where ice is sold. West of the entrance into hogpen alley and on the south side of railroad alley is a scale where purchased ice is weighed. Ice peddlers load their trucks at the ice house, and drive in a direction south of west across railroad alley and across the curve of the railroad track to the scale. The accompanying sketch, which is merely a sketch, will assist in visualizing the locality.

[SEE DIAGRAM FOR ORIGINAL]

The accident occurred about 8:35 o'clock in the morning. Plaintiff loaded his truck with ice at the ice house and proceeded toward the scale. Another ice peddler was on the scale ahead of him, and plaintiff stopped with the front of his truck across the track on the scale side and with the rear of the truck on the track. A switch engine backed out of hogpen alley and the tender struck the truck. The truck was pushed fifteen or twenty feet, thrown against the office building and demolished.

The petition said nothing about plaintiff having stopped on the railroad track, but alleged that plaintiff was standing still at the corner of the Armour office building, in plain view of those operating defendant's engine, for a distance of more than seventy-five feet, but that they--

"Carelessly and negligently backed said switch engine into, against and upon said truck of this plaintiff, and carelessly and negligently failed and neglected to keep a watchman on the back end thereof, and carelessly and negligently failed and neglected to stop said switch engine in time to prevent said collision or to check the speed thereof so that plaintiff could escape therefrom, and that said defendant, agents, servants and employees could and did see plaintiff in a place of danger, and carelessly and negligently ran said engine into and against said motor truck, . . ."

The answer contained a general denial and a plea of contributory negligence. The reply contained a general denial.

In describing the place where plaintiff was injured, the petition alleged that Armour and Company provided a scale on the street, to be used by persons going there to purchase ice, but there was no allegation that the place was much frequented by ice peddlers or others, or allegation which indicated in any manner the extent to which the street was used, whether by pedestrians or by vehicular or other traffic. There was no allegation that those in charge of the engine gave no warning when the engine was about to enter the street; there was no allegation that no lookout whatever was maintained; and there was no allegation that the engine was moved at a rate of speed improper on account of traffic conditions or other circumstances.

Plaintiff called defendant's engineer as a witness to describe the locality and the general conditions of the locality, but not the accident. In doing so the witness described with particularity everything shown by the sketch. In the course of his direct examination he said he knew the Armour and Company office building on the south side of railroad alley was a place where persons came to seek employment of the company; he knew where the ice-loading dock and the scale were, and he saw ice wagons there when he went through the gate and into the plant in the morning; and he knew railroad alley was used by a large number of men continually passing to and fro during the day, and was paved with brick. Defendant was not permitted to cross-examine plaintiff's witness with reference to factors of the accident. Objections were sustained to questions whether it was usual and customary to back around the curve into railroad alley, whether the engine was backing that morning, whether while switching on various occasions the engineer had ever at any time seen anyone stop his car on the track, whether he saw plaintiff's truck on the track, and whether he saw plaintiff around there any time that morning, as not proper cross-examination. The court said defendant "should not go into the details of the accident on cross-examination." The only answer the witness was permitted to give was that he had never seen any people standing on the track prior to the accident. No evidence whatever was introduced relating specifically to traffic conditions at the time the engine backed into railroad alley. The only testimony touching the subject was plaintiff's testimony that there were other trucks getting ice when he was there; a witness whose attention was attracted by the noise of the accident said he was waiting at the office building to ask for employment, and another witness said he was at the other end of the building when the collision occurred. There was neither allegation nor evidence that due care was not used, either toward traffic in general or toward plaintiff in particular, in bringing the engine out of hogpen alley and into railroad alley. The court gave the jury the following instructions:

"If you find from the preponderance of the evidence that the employees of the defendants were guilty of negligence in one or more of the particulars alleged by the plaintiff, substantially as hereinbefore stated, and that such negligence was the proximate cause of injuries to the automobile truck of the plaintiff, it will be your duty to return a verdict in his favor, unless you further find from the preponderance of the evidence that the plaintiff was also guilty of negligence which directly contributed as a proximate cause to such injuries to plaintiff's truck, in which event you will find for the defendant, notwithstanding any negligence on its part, unless the negligence of the defendant's employees was of such a gross or reckless character as to amount to willfulness or wantonness as hereinafter stated.

"If you find from the preponderance of the evidence that the place in question was one where persons were continually passing to and fro across and upon the tracks of the defendant, and the danger of backing a switch engine into and upon the street or alley at the point in question, under the circumstances in this case, was so obvious and insistent that the engineer in charge of the switch engine should have known thereof and should have known that a collision was imminent, and failed to exercise reasonable care to prevent the collision with plaintiff's car because he was indifferent as to the consequences to such an extent as to amount to wantonness; then and in that event, if the plaintiff suffered damages to his truck by reason of such wantonness on the part of said engineer, you should find a verdict in favor of the plaintiff, regardless of any negligence on his part, in getting into a place of danger upon the tracks of the defendant.

"Wanton negligence, as used in these instructions, is the willful failure of one charged with a duty to exercise an honest effort in the employment of all reasonable means to prevent a serious injury."

Defendant says the petition charged nothing but negligence, which the court defined as follows:

"Negligence is the want of ordinary care and prudence in doing or failing to do an act. Ordinary care and prudence means such reasonable care, caution and judgment as would be expected of an ordinarily prudent and careful person under the circumstances disclosed by the evidence."

This court has made it plain that wanton conduct differs from negligent conduct not simply in degree of culpability, but in kind:

"In an action to recover damages on account of an injury to a pedestrian resulting from a locomotive being driven along the public street of a city at an unlawful and dangerous rate of speed, with no signal being given of its approach and with no outlook being kept, the misconduct of those in charge of it may amount to such recklessness and...