Fowler v. Missouri, K. & T. R. Co.

• Decision Date: 03 June 1935
• Parties: ORVILLE FOWLER ET AL., RESPONDENTS, v. MISSOURI-KANSAS-TEXAS RAILROAD CO., APPELLANT
• Court: Kansas Court of Appeals

84 S.W.2d 194

229 Mo.App. 561

ORVILLE FOWLER ET AL., RESPONDENTS, v. MISSOURI-KANSAS-TEXAS RAILROAD CO., APPELLANT

Court of Appeals of Missouri, Kansas City

June 3, 1935

Appeal from Circuit Court of Cole County.--Hon. Nike G. Sevier Judge.

Reversed and remanded.

Baker & Baker and Ira H. Lohman for respondents.

Harris Price & Alexander and Irwin & Bushman for appellant.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

Plaintiffs, husband and wife, seek to recover damages from the defendant, by way of loss of earnings, for the death of their minor son who was killed by an eastbound train of defendant at a crossing about one mile west of Wainwright, Callaway County, Missouri, on August 25, 1933.

The cause was instituted in the Circuit Court of Callaway County, Missouri, on October 27, 1933, by the filing of plaintiffs' petition therein.

The venue of the cause was, upon application of the defendant, changed to the Circuit Court of Cole County, where the cause was tried on May 25, 1934. The trial resulted in verdict and judgment for the plaintiffs in the sum of thirty-five hundred dollars, from which the defendant, after an unsuccessful motion for a new trial, prosecutes this appeal.

The first amended petition, on which the cause proceeded to trial, in all respects sufficiently sets out a cause of action by plaintiffs against defendant for the recovery of the damages sought by them thereunder. It alleges negligence as follows:

"First: That the crossing so maintained by the defendant company was at the time of said collision and had been for many years a highly dangerous crossing, all of which was well known to the defendant, its agents, servants and employees; that persons approaching said crossing from the north side could neither hear nor see trains approaching either from the east or west, and on account of the bluffs, trees, the contour and formation of the land, the number, size and height of the weeds, trees and brush on defendant's right of way defendant's trains could neither be seen nor heard.

Second: That defendant maintains and maintained a whistling post one-fourth mile west of the crossing aforesaid; that although defendant's agents, servants and employees in charge of said train knew of the existence of the dangerous crossing aforesaid, and knew that persons were likely at any time to pass defendant's tracks at said point, defendant, its agents, servants and employees failed and neglected to sound a whistle or ring a bell one-fourth mile west of said crossing as was its and their duty to do.

Third: That although defendant, its agents, servants and employees knew of the existence of said crossing and knew it was a dangerous crossing, yet defendant, its agents, servants and employees failed and neglected to blow a whistle or ring a bell a sufficient distance west of said crossing to notify and warn persons approaching said crossing that such train was about to pass.

Fourth: That although defendant, its agents, servants and employees saw and knew, or by the exercise of ordinary care and diligence could and should have seen and known that the plaintiff, Orville Fowler, Jr., when in a position of danger and unable to extricate themselves therefrom, it and they carelessly and negligently failed to stop said train when by the exercise of ordinary care and prudence, with the means and appliances at hand they could have stopped said train in time to have avoided said collision without injury to the train, its cargo or passengers.

Fifth: That when the plaintiff, Orville Fowler, was approaching the crossing aforesaid, driving the team hitched to the wagon aforesaid, and was within twenty-five feet of said crossing, he saw defendant's train approaching from the west and immediately undertook to and did bring his team to a stop before they passed upon defendant's track or came within the path of defendant's approaching train; that said team was a gentle team, used to and not afraid of passing trains; that after defendant, its agents, servants and employees in charge of said train saw, or, by the exercise of ordinary care, could and should have seen, the said plaintiff in this position and in close proximity to said track, and after and when said train was so close to said crossing the said plaintiff could not possibly pass over said tracks with safety, and after and when said train had reached a point approximately only one hundred feet from said crossing, the defendant, its agents, servants and employees in charge of said train carelessly and negligently caused to be issued from said engine a loud, screeching and screaming whistle thereby frightening said team and causing it to lunge upon defendant's tracks and to pull and place the team, wagon, contents and passengers in front of the said on-coming train."

The amended petition, after charging the acts of negligence relied upon, concludes with the following paragraph:

"Plaintiffs state that as a direct and proximate result of said acts of negligence of the defendant, its agents, servants and employees and each of them, plaintiffs' said minor son was killed and they thereby became deprived of his services; that he was a boy of the age of six years, all to plaintiffs' damage in the sum of ten thousand dollars ($ 10,000), for which sum they pray judgment against the defendant, together with their costs in this behalf expended."

The answer was a general denial coupled with allegations of contributory negligence as follows:

"1. That plaintiffs carelessly and negligently, as they did at said time and place, failed and neglected to stop said team of mules or divert the course thereof when they saw or by the exercise of ordinary care they could have seen defendant's said train approaching in time, by the exercise of ordinary care, to have stopped said team of mules or diverted the course thereof and thus and thereby avoided and averted said collision, and the resulting injuries and damages, if any.

2. That plaintiffs carelessly and negligently, as they did at said time and place, failed and neglected to stop said team of mules or divert the course thereof when they heard or by the exercise of ordinary care they could have heard defendant's said train approaching, in time, by the exercise of ordinary care, to have stopped said team of mules or diverted the course thereof and thus and thereby have avoided and averted said collision and the resulting injuries and damages, if any.

3. That plaintiffs carelessly and negligently, as they did at said time and place, failed and neglected to remove their said infant son from said wagon and into a place of safety when they saw or by the exercise of ordinary care they could have seen defendant's train approaching in time to have removed their infant son from said wagon and into a place of safety and thus and thereby avoided and averted said collision and the resulting injuries and damages, if any.

4. That plaintiffs carelessly and negligently, as they did at said time and place, failed and neglected to remove their said infant son from said wagon and into a place of safety when they heard or by the exercise of ordinary care they could have heard defendant's train approaching in time to have removed their infant son from said wagon and into a place of safety and thus and thereby avoided and averted said collision and the resulting injuries and damages, if any.

5. That plaintiffs carelessly and negligently, as they did at said time and place, allowed and permitted their said infant son to ride in said wagon behind said team of mules when they knew or by the exercise of due care and caution they should have known that said wagon and team of mules was approaching or about to approach a place of danger.

6. That the plaintiffs, as they did at said time and place, carelessly and negligently attempted to drive said team of mules and wagon over defendant's railroad tracks at the crossing in question without stopping, looking and listening for the approach of trains on said tracks.

7. That the plaintiffs carelessly and negligently, as they did at said time and place, approached the said railroad crossing without stopping, and without looking and listening for the approach of trains on defendant's said railroad track, when by looking they could have seen and by listening they could have heard defendant's said train in time to have stopped said team of mules, diverted the course thereof and thus and thereby averted and avoided said collision."

The reply was a general denial.

There is evidence tending to show as follows: On the evening of August 25, 1933, Orville Fowler, Jr., about the age of six years, was killed by defendant's engine and train of cars running into a wagon in which he was riding and the team by which it was drawn, at a crossing constructed and maintained over defendant's railroad tracks in Callaway County, at a point about one and one-half miles west of Wainwright, a station along the line of defendant's railroad. The plaintiffs herein were his father and mother. The wagon and team were, at the time he was killed, being driven by his father, the plaintiff Orville Fowler, who was also riding in the wagon. At the time in question, the plaintiffs, together with Orville Fowler, Jr., were living on the farm of one J. L. Adkinson, near the crossing mentioned. The farm adjoins, in part, the right of way of defendant's railroad track. Defendant's track ran through a part of the farm, dividing it north and south. Its track, at the point where the crossing was maintained, ran in an easterly and westerly direction. The plaintiffs lived on that part of the farm north of the track, the house in which they lived being located one hundred and fifty to two hundred feet north of defendant's right of...