Freeman v. Kansas City Public Service Co.

• Decision Date: 26 May 1930
• Docket Number: No. 16931.,16931.
• Citation: 30 S.W.2d 176
• Parties: FREEMAN v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

30 S.W.2d 176

FREEMAN v. KANSAS CITY PUBLIC SERVICE CO.

No. 16931.

Kansas City Court of Appeals. Missouri.

May 26, 1930.

Rehearing Denied June 30, 1930.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Suit by Ida May Freeman against the Kansas City Public Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Chas. L. Carr, Watson, Gage & Ess, and E. E. Ball, all of Kansas City, for appellant.

Trusty & Pugh, of Kansas City, for respondent.

BLAND, J.

This is a suit for the wrongful death of plaintiff's husband. Plaintiff recovered a verdict and judgment in the sum of $4,500 and defendant has appealed. The main point urged by defendant is that its demurrer to the evidence should have been sustained. There was evidence tending to establish the following facts:

Deceased was run over by an east-bound Fairmount Park street car about one a. m. of the morning of March 14th, 1926, at Ridgeway Station in the city limits of Kansas City and about halfway between the main business district of that city and Independence. There was no eyewitness to the tragedy. The decapitated body of deceased was found lying next to and south of the south rail of the eastbound car tracks at the time in question. Deceased's remains evidenced that he had been very recently alive. His head was "cut straight off" at the chin. His face was mashed almost beyond recognition and the skull was crushed. His head was lying from 50 to 150 feet east of his body to the south and on the outside of the tracks on the ties.

Deceased's body was first discovered by an east-bound automobilist driving on Independence avenue. As this witness approached the crossing he saw a street car going north-east at a point 100 to 150 feet northeast or beyond the crossing. The witness testified that the body was lying between the rails of the east-bound tracks, but in this he was evidently mistaken as the physical facts, hereinafter stated, will show.

At the time of the death in question the street railway properties were operated by receivers. However, subsequently the defendant took over these properties and assumed the liabilities of such receivers.

Ridgeway Station is located at a point where defendant's double street car tracks cross Independence Avenue, an east and west street in Kansas City. The street car tracks at this point run from southwest to northeast and therefore cross Independence Avenue diagonally. The deceased, a colored man, lived at Independence with his wife who is the plaintiff herein. When deceased left his home on the morning previous to his death he was dressed in a brown wool suit, consisting of pants, coat and vest, over which he had a pair of blue overalls having a bib thereon. He also wore a jumper over his coat. He was wearing tan socks and slippers, a homemade scarf and a hat. He told his wife that he would not be home early that evening; that if he did not work over time he would stop and get his hair cut on the way home and probably would visit with some friends; that he would be home late. He had money when he left home but none was found on his body after his death. He left the Plant of Swift & Company in Kansas City, Kansas, where he worked, about 5:30 p. m. About 11 to 11:30 of the evening of that day a person answering deceased's description was seen by a special officer of the Terminal Company, who was a witness for defendant, on the property of the Terminal Company, about 300 yards from where deceased was killed. He was then in an intoxicated condition. The officer took a bottle of whisky from him and ordered him off the company's property. The officer saw this man twice, the last time the man was sitting on the embankment of the railroad, asleep. The officer asked him what he was doing there and the man replied that he desired to catch an Independence car. The officer directed the man to the street car and the last he saw of him he was walking along a path crossing a ball diamond and going toward the street car tracks. This path was frequently used by some of the employees of nearby industries.

Plaintiff's evidence tends to show that deceased did not drink but was a person of sobriety and good habits and was quite religious. However, there is no evidence explaining the action of deceased in being off of a street car at the place where he was killed. The evidence shows that two lines of street cars pass over these tracks, one is called the Fairmount Park line and the other the Independence line; that deceased would at times board a Fairmount Park car in the downtown portion of Kansas City and transfer to an Independence car at the junction about two miles further east of the point where he was killed. A Fairmount Park transfer good on the Independence line was found in his pocket after his death.

Beginning at Ridgeway Station and running several blocks southwest thereof the street car tracks ran over a private right of way. They were on a fill, raised 6 or 8 feet above the surrounding ground, with cinder ballast packed between the ties extending 4½ feet beyond the end of the ties towards the south. The cinders between the tracks were packed so firmly that no imprint could be left by a man's footsteps. The cinders were also well packed on the outside of the tracks towards the south. Witnesses testified that they found no evidence on the cinders to indicate that any one had been sitting or wallowing on them but the evidence is such as to show that the cinders were packed too firmly to show anything of that nature. The cinders between the two sets of tracks and between the east-bound tracks had been packed by the feet of pedestrians, the evidence showing that the public had used these tracks for at least ten years as a footpath. The tracks ran straight in a southwesterly direction from Ridgeway Station for at least three blocks.

An investigation was made of the physical condition surrounding this crossing after the finding of deceased's body. This investigation disclosed that fresh marks were gouged out of the cinders along the outside edge of the ties from where deceased's body was found to a point 320 feet back toward the southwest. These ties extended 18 inches south of the east-bound tracks. The cinders were gouged out to a depth of from one-half to one inch. These gouged marks were 5 or 6 inches in length, 4 or 5 inches in width and appeared intermittently 4 or 5 feet apart. At the place where these marks started 320 feet from the body there was found a piece of dark skin about the size of a five cent piece. This skin appeared to have come from a human thumb or toe. There was no gouge marks between the east-bound rails. Nothing was found either on the outside or inside of the rails to indicate any dragging along, but the marks at the end of the ties were of a hit and miss character and appeared to one of the witnesses as having been made by a heel or toe. There was also found small bits of ravelings similar in color and appearance to the cloth of the blue overalls which deceased wore, imbedded in splinters of the ties south of the east-bound tracks, some of the evidence showing that these ravelings were in the ends of the ties and some that they were 7 or 8 inches from the south rail. These ravelings ran back southwestwardly to a point about 300 feet from the crossing. There were no ravelings upon the loading platform hereinafter described.

There was no paving along the private right of way. The tracks were upon ties and extended about 4½ inches above them. There was a loading platform south of the tracks consisting of cinders which extended to the top of the rail. The platform began at the crossing and ran along the east-bound tracks in a southwesterly direction for a distance of 100 feet. There was evidence that the gouged out places extended over this cinder loading platform as well as southwest thereof. There was evidence that beginning 150 feet southwest of the crossing and leading up thereto there was a few drops of blood on the ties or ground outside of the south rail and near thereto. There was no blood, ravelings or gouged out places between the east-bound tracks to the place where the body was found. However, there was blood on the outside rail at that place and between the tracks east of the crossing where brains were scattered along in a few places between the rails and against the south rail.

The evidence shows that the overalls which deceased was wearing were torn in a few places, the witness stating that he believed that these torn places were in one of the legs; that they "were not torn to any great extent"; that they were "slightly rumpled," "messed up" and "rather dirty." It looked to the witness as though deceased had been dragged. Another witness testified that deceased's clothes were torn and cut around the neck. Deceased's hand was mashed or crushed but not severed from his body. There is a dispute in the testimony as to whether this was the left or the right hand. The toes on his left foot were likewise mashed or crushed but not severed. They looked like they had been "chewed up." The humerus of his left arm near the top was fractured. There were no other broken bones. His body was not mangled. The only scratch or bruise mark that was found upon the body was a bruise on the back of the left shoulder. The heel of the left shoe was gone and the shoe itself had a cut upon it and a mark across the bottom.

When the body was found a police officer was procured who examined the front ends of the street cars that were returning to Kansas City and found no blood or evidence of any of the cars having struck anything. Car No. 626 arrived back at the scene of the tragedy about 1:30 a. m. It went east a little after 1 o'clock. This was the last regular trip for this car and it was taken to the barn where it was examined by defendant's witnesses. They found that there was blood upon the inner side of the rear two wheels on the right side of the car. The...