Fox v. Missouri Pac. R. Co.

• Citation: 74 S.W.2d 608,335 Mo. 984
• Decision Date: 18 September 1934
• Docket Number: 31635
• Parties: Mary Beulah Fox, Administratrix of the Estate of Lloyd Fox, v. Missouri Pacific Railroad Company, Appellant, a Corporation
• Court: United States State Supreme Court of Missouri

74 S.W.2d 608

335 Mo. 984

Mary Beulah Fox, Administratrix of the Estate of Lloyd Fox, v. Missouri Pacific Railroad Company, Appellant, a Corporation

No. 31635

Supreme Court of Missouri

September 18, 1934

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Thomas J. Cole, Montgomery & Rucker, A. L. Shortridge and Rayland, Otto & Potter for appellant.

(1) The court erred in overruling the demurrer of the appellant at the close of the respondent's evidence, and also at the close of all the evidence, because the verdict of the jury was based, and had to be based, upon pure guess and speculation. A plaintiff is never permitted to recover by building inference upon inference, presumption upon presumption or conclusion upon conclusion, nor is a plaintiff permitted to supplement elemental or basic facts by inference. The existence of an ultimate fact may be proved by direct or circumstantial evidence, but such fact must appear as a direct and reasonable inference from other facts and circumstances and not as a result of inference that can be reached only by a process of reasoning from such other facts and circumstances. Boggess v. Kansas City Ry. Co., 229 S.W. 405; Sexton v. Met. St. Ry. Co., 245 Mo 275; Hamilton v. Railroad, 250 Mo. 722. A jury may draw a reasonable inference, but such inference must be deduced from the testimony and not be merely conjectural. Felver v. Railroad Co., 216 Mo. 195. The inference of an ultimate fact must arise directly from the facts in evidence and not from conclusion drawn from other conclusions. Creson v. Ry. Co., 152 Mo.App. 197; Levy v. Ry. Co., 157 Mo.App. 536. Neither the court nor a jury can supplement facts with speculation and draw inferences requiring the support of evidence, merely because the facts necessary for recovery are beyond the scope of possible evidence. Cox v. Frisco, 9 S.W.2d 102. A mere possibility is not a circumstance from which an inference may be drawn. Watkins v. Hustis, 79 N.H 285, 109 A. 713. The negligence of the railway in maintaining a defective crossing must be shown to be the proximate cause of the accident. Cooper v. Ry. Co., 117 Kan. 703. Under the laws of Kansas it has been repeatedly held that it is negligence as a matter of law for one to walk or stand upon a railroad track even in a public street when there is no necessity for so doing, and that no recovery can be had for any injuries sustained under such circumstances from a moving car or engine not knowingly or wantonly caused. Cox. v. Ry. Co., 74 Kan. 854; Railway v. Schwindt, 67 Kan. 8; Zirkle v. Ry. Co., 67 Kan. 77. The railroad is not obliged to keep the crossing in repair except for the purpose of travel, and one using the crossing as a playground or as a bed or loafing place, is not protected. Harris v. Railroad Co., 211 Mass. 573, 98 N.E. 578; Cox. v. Ry. Co., 74 Kan. 854; Cleveland, etc., Ry. v. Hibsman, 99 Ill.App. 405; Roden v. Ry. Co., 133 Ill. 72. (2) In submitting the case to the jury by an instruction on damages only, the respondent necessarily went to the jury on all of the allegations of negligence, and if there was no evidence tending to show that one of these allegations of negligence was a proximate cause of the injury, the court erred in submitting such allegation of negligence by an instruction on damages only. Willis v. Applebaum, 26 S.W.2d 825; Crossno v. Terminal Railroad, 41 S.W.2d 800; Cox v. Terminal Railroad, 43 S.W.2d 576.

W. W. McCanles for respondent.

(1) The court did not err in overruling the demurrer of the appellant at the close of the respondent's evidence, and also at the close of all the evidence. Dewald v. Railroad Co., 44 Kan. 586; C. R. I. & P. Ry. Co. v. Hinds, 56 Kan. 758; A. T. & S. F. Ry. Co. v. Hill, 57 Kan. 139; Railroad Co. v. Gallagher, 68 Kan. 424; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Newell v. Boatmen's Bank, 216 S.W. 918; Solomon v. Moberly L. & P. Co., 262 S.W. 372, 303 Mo. 622; Connor v. Railroad Co., 181 Mo. 411; Baker v. Railroad Co., 39 S.W.2d 543; Thompson v. Lamar, 322 Mo. 514; Jones v. Railroad Co., 220 S.W. 484; Kerr v. Bush, 215 S.W. 393; Buesching v. St. L. Gas Light Co., 73 Mo. 219. (2) The court did not err in giving respondent's Instruction 1, or in submitting the case to the jury on behalf of respondent by an instruction on damages only. Davison v. Hines, 246 S.W. 295; Macklin v. Fogel Const. Co., 31 S.W.2d 14; Sull v. Ry. Co., 12 S.W.2d 735; Barr v. Nafziger Baking Co., 41 S.W.2d 562; Sullivan v. Ry. Co., 321 Mo. 697; Iman v. Walter Fruend Bread Co., 58 S.W.2d 477.

OPINION

Atwood, P. J.

This is an appeal from a judgment against the Missouri Pacific Railroad Company for $ 10,000 in an action for damages for death of Lloyd Fox, deceased husband of Mary Beulah Fox, administratrix, brought in behalf of his widow and two minor children.

The action was based on the death by wrongful act statute of Kansas and on Section 66-227 of the General Statutes of Kansas, 1923, which required railroad companies operating within the State to keep in good repair good and sufficient crossings where such railroads crossed public highways.

After pleading the statute in full plaintiff further alleged in her petition "that on the 4th day of December, 1930, and for more than thirty (30) days prior thereto, the said defendant carelessly and negligently failed to provide and maintain and keep in good repair a good and sufficient crossing on the public highway leading over and across the defendant's tracks at Greeley, Kansas, as aforesaid; that on said crossing as aforesaid, the defendant carelessly and negligently allowed an opening and space to be and exist between one of the defendant's rails and planks in said crossing and said plank to be from one-half inch to an inch lower than the rail, which was dangerous for the public to travel over and upon; that the space between the rails was not sufficiently paved or filled with plank and said plank was not on the same grade as the track, which made said crossing as required by the aforesaid Statute of the State of Kansas, and in direct violation thereof; that the defendant carelessly and negligently caused, allowed and permitted a space between the rail and one of the inner planks adjoining said rail to be wide enough for the heel of a man's shoe to catch therein, and that on the aforesaid day, the plaintiff's deceased husband was walking across said crossing, as aforesaid, and caught his shoe in said space, described aforesaid, and said shoe and said deceased became fastened and caught therein and he was unable to remove said shoe or foot, or to extricate same, or to extricate himself therefrom, and while so caught and fastened therein, as aforesaid, one of the defendant's trains passed thereover, ran into and collided with and struck said deceased, before he could extricate himself, and, as a direct result of the injuries sustained, he died." A similar charge of negligence was then pleaded as a common-law count.

Defendant's answer was a general denial. At the close of plaintiff's case and again at the close of the whole case defendant filed a general demurrer to the evidence which demurrers were overruled. No withdrawal instructions were requested.

The evidence shows that Main Street, where the accident occurred, runs due north and south, that the railroad track crossed it from the northeast to the southwest, and that this crossing was much used by the public. The testimony of Mary Beulah Fox shows that her husband was thirty-two years of age at the time of his death; that he left surviving, his widow, respondent herein who was about twenty-five years of age, and two infant children of the ages of two and five years, respectively; that he was a farmer and tended a small farm within or near the corporate limits of Greeley, Kansas; that about seven o'clock on the evening of December 4, 1930, the deceased, Lloyd Fox, left his farm home and that she never saw him alive thereafter.

The testimony of Charles Martin tends to show that on December 4, 1930, and for about forty days prior thereto, he was living with and employed by the deceased, Lloyd Fox; that on the night of the 4th of December, 1930, he last saw Mr. Fox when he left his home about 6:45 p. m.; that while at supper that evening the deceased said that he had left a singletree at "Jack's Corner," and that if it kept on raining the creek would rise and he would have to get it before it washed away; that "Jack's Corner" was east and north of the aforesaid crossing near which deceased's lifeless body was later found.

A. S Kelsey testified that he carried the mail to the Missouri Pacific depot and from the depot to the postoffice in Greeley, Kansas; that he was at the Missouri Pacific depot at 7:15 p. m., on December 4, 1930; that at that time he saw the deceased at the depot platform, which was one block west and one block south of the crossing in question, and that the deceased was walking east along the railroad platform, but that the witness never saw him leave the platform and did not know which direction he went thereafter. He testified that the deceased said: "I left a singletree down at Jack's Corner, and I had better go down and get it before anybody picks it up." He further testified that a through passenger train passed Greeley, Kansas, going southwest due at 7:17 p. m., on December 4th, 1930; that the engine headlight was burning and the regular station and crossing signals were sounded; that the deceased had about enough time to go from the depot to the crossing in question between the time he saw him at the depot and the time the train passed the crossing. There is no evidence that deceased was thereafter seen by any one on the evening of December 4, 1930, nor is there any evidence that any other train...