Fearons v. Kansas City Elevated Ry. Co.

• Decision Date: 01 March 1904
• Citation: 79 S.W. 394,180 Mo. 208
• Parties: FEARONS v. KANSAS CITY ELEVATED RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 394

180 Mo. 208

FEARONS v. KANSAS CITY ELEVATED RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 1, 1904

Appeal from Jackson Circuit Court -- Hon. James Gibson, Judge.

Affirmed.

Jno. H Lucas for appellant.

(1) The action of the trial court in declaring the law to be that under the pleadings and evidence the plaintiff could not recover was right. And it was error to set the same aside. The petition wholly fails to aver that the servants of the appellant were guilty of wantonness in not stopping the train after discovering the perilous condition of the deceased. R S. 1899, sec. 592; 14 Encl. Pleading and Practice, pp. 338 345; Holwerson v. Railroad, 157 Mo. 224; Raming v. Railroad, 157 Mo. 507. The petition is one of simple negligence and plaintiff's cause of action must stand or fall on the question of a failure to keep a lookout for the deceased at the time of the accident. Holwerson v. Railroad, 157 Mo. 224. (2) There is no evidence in the record that the motorman saw the deceased in a perilous condition in time to have stopped the car and avoided injuring him. Weldon v. Railroad, 13 Am. & Eng. R. R. Cas. (N. S.) 762; Tully v. Railroad, 23 Am. & Eng. R. R. Cas. (N.S.) 212; Feeback v. Railroad, 167 Mo. 215; Barker v. Railroad, 98 Mo. 50; William v. Railroad, 96 Mo. 278; Rine v. Railroad, 88 Mo. 400; Maloy v. Railroad, 84 Mo. 270; Hallihan v. Railroad, 71 Mo. 113; Carrier v. Railroad, 74 S.W. 1002; Zumault v. Railroad, 74 S.W. 1015; Sharp v. Railroad, 161 Mo. 235; Cooley on Torts, sec. 600; Tanner v. Railroad, 161 Mo. 497; Loring v. Railroad, 128 Mo. 349; Davies v. Railroad, 159 Mo. 9; Mason v. Railroad, 27 Kan. 89; Anderson v. Railroad, 23 L. R. A. 206; Cheney v. Railroad, 22 L. R. A. 576. (3) There is no evidence that the motorman might have seen the deceased in time to have stopped the car, and avoided striking him. Watson v. Railroad, 133 Mo. 246; Sinclair v. Railroad, 133 Mo. 240; Vogg v. Railroad, 138 Mo. 176; Davies v. Railroad, 159 Mo. 6; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497. (4) The deceased was guilty of such contributory negligence as to preclude a recovery. Zumault v. Railroad, 74 S.W. 1015. (5) There is no evidence that the deceased was a licensee in defendant's tunnel, and all the evidence offered is insufficient to create such a relation between the deceased and the defendant. Dahlstrom v. Railroad, 96 Mo. 99; Young v. Railroad, 156 Mass. 178; Hyde v. Railroad, 110 Mo. 272; Railroad v. Godfrey, 71 Ill. 500; Blanchard v. Railroad, 126 Ill. 416; Railroad v. Vaughn, 93 Ala. 209; Railroad v. State, 62 Md. 479; Finlayson v. Railroad, 1 Dill. (U.S.) 579; Sturgis v. Railroad, 72 Mich. 619; Wright v. Railroad, 142 Mass. 296.

Gage, Ladd & Small for respondent.

(1) The tunnel having, with the knowledge of the defendant and its employees, been used for many years by large numbers of pedestrians as a footpath, the employees of the defendant in charge of the car knew that the presence of such persons in the tunnel might reasonably be expected or anticipated; and it was therefore their duty to keep a careful lookout in order to discover such persons, and if they failed to do so, and the death of Fearons resulted from such failure, they were guilty of actionable negligence. Morgan v. Railroad, 159 Mo. 262; Kreis v. Railroad, 131 Mo. 533; Chamberlain v. Railroad, 133 Mo. 587; Williams v. Railroad, 96 Mo. 275; Guenther v. Railroad, 95 Mo. 286; Guenther v. Railroad, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Powell v. Railroad, 59 Mo.App. 626; Garner v. Trumbull, 94 F. 321; Ashworth v. Railroad, 116 Ga. 635; Bullard v. Railroad, 116 Ga. 644; Crawford v. Railroad, 106 Ga. 870; Arrowood v. Railroad, 126 No. Car. 629; Troy v. Railroad, 99 No. Car. 298; Jones v. Railroad, 61 So. Car. 556; Taylor v. Canal Co., 113 Pa. St. 162; Fleming v. Railroad, 106 Tenn. 374; Hansen v. Railroad, 105 Cal. 379; Railroad v. Crosnoe, 72 Tex. 79; Railroad v. Smith, 87 Tex. 348; Railroad v. White, 84 Va. 498; Railroad v. Rogers, 100 Va. 324; Harriman v. Railroad, 45 Ohio St. 11; Corbett v. Railroad (Utah), 71 P. 1065; Mason v. Railroad, 89 Wis. 151; Railroad v. Schuster (Ky.), 7 S.W. 874; Railroad v. Keelin (Ky.), 62 S.W. 261; Klockenbrink v. Railroad, 172 Mo. 678; Ranier v. Railroad, 39 W.Va. 50; Gunn v. Railroad, 42 W.Va. 676. (2) If it had been necessary to establish the permission of the defendant or acquiescence by it, in the use of the tunnel by the public, the question was one for submission to the jury. Railroad v. Lowell, 151 U.S. 209; Hansen v. Railroad, 105 Cal. 379; Taylor v. Canal Co., 113 Pa. St. 162; Railroad v. Rogers, 100 Va. 324; Troy v. Railroad, 99 No. Car. 298. It was in evidence that once, for a limited period, a guard or watchman had been stationed at the east end of the tunnel for that purpose. But even he had been withdrawn. This in itself was significant. Witness after witness testified as to the habit of people passing through without objection from any source, of which they ever heard. Such a situation as this was well calculated to lead everyone to suppose that the sign was a mere brutum fulmen, and so intended and regarded by the company; and that notwithstanding the presence of the sign, the company was indifferent to the use of the tunnel by foot passengers. If, when the sign failed to perform its mission, and the company knew that its prohibition was the subject of almost continuous violation, it had really wished to keep people out and objected to their entrance, it would have taken more effective measures of some kind, to accomplish that object. The non-action of the company under these circumstances, was most cogent evidence of acquiescence. (3) The learned counsel for appellant criticises the petition, and is dissatisfied because the plaintiff does not characterize his client's servant as guilty of murder, and adorn her complaint with the language of vituperation. The petition states the facts as they were understood by the plaintiff, and, as it has transpired, as they were developed at the trial. The brief kindly suggests what the petition ought to have stated. According to it there should have been an averment "that deceased was without any known cause on the private way of the defendant, in a position of peril, and defendant's motorman, knowing of his presence and peril, wantonly and designedly ran upon and killed the deceased." If the petition had contained the averments suggested by counsel, the respondent would not be represented here in this court. Her case, if tried on such a petition, would have been hopeless indeed. There is nothing in the facts to justify, or which tends in any degree to prove, such averments. There is nothing whatever in the evidence from which any reasonable mind would infer that the motorman knew of Fearons' peril and intentionally ran over and killed him. The case is one of negligence, and so it was brought. Negligence in failing to perform a duty imposed by law -- the duty of looking out in order to discover a person in danger. Such is the petition and such is the case made. If there was no such duty, the case will fail. But it will not fail because the motorman knowingly and intentionally inflicted the injury. He was not guilty of that offense.

OPINION

FOX, J.

The petition upon which this case was tried is as follows:

"Plaintiff for her amended petition, states that she was at the time of his death, as hereinafter mentioned, and had been for many years prior thereto, the wife of George R. Fearons. That the defendant is and for many years past has been a corporation, created, organized and doing business under the laws of the State of Kansas, and as such did, on the 5th day of April, 1899, own, and was then and for some time prior thereto had been operating, a street railroad from Delaware street in Kansas City, Jackson county, Missouri, west along Eighth street to Washington street, at or near which said last mentioned street said railroad and its tracks entered a tunnel, through which it passed for several hundred feet on its way to a station of said railroad, at or near the Union depot in said Kansas City. That the motive power employed by the defendant in the operation of its said railroad and in moving its cars, was electricity. That on said 5th day of April, said tunnel was and had been daily, for a period of several years immediately preceding said date, with the full knowledge of the defendant and all its officers, agents, servants and employees, used and treated as a thoroughfare by large numbers of persons not employees of the defendant, who were in the habit of walking to and fro therein, and upon the tracks therein, in the same manner and with the same freedom as if the same had constituted a public highway of said Kansas City. That in view of said frequent and habitual use of said tunnel and its tracks by foot travelers, with the knowledge of the defendant, it was the duty of the defendant and its officers, agents, servants and employees, who might run, conduct or manage the cars of the defendant, while the same were moving along the tracks in said tunnel, to keep and maintain a sharp and watchful lookout for persons who might be on said tracks in front of cars moving thereon, and thereby exposed to danger, so that upon their discovery, the cars might be stopped in time to prevent their running against or over such persons and thereby injuring them. That on said 5th day of April, 1899, while the said George R. Fearons, in the exercise of due care, was in said tunnel and upon one of the tracks of the railroad of the defendant, he was, by the negligence and unskillfulness of the officers, agents, servants and employees of the defendant in running,...