Gumm v. Kansas City Belt Ry. Co.

• Decision Date: 07 February 1910
• Citation: 125 S.W. 796,141 Mo. App. 306
• Parties: GUMM v. KANSAS CITY BELT RY. CO.
• Court: Missouri Court of Appeals

125 S.W. 796

141 Mo. App. 306

GUMM v. KANSAS CITY BELT RY. CO.

Kansas City Court of Appeals. Missouri.

February 7, 1910.

1. RAILROADS (§ 327)—CROSSING ACCIDENT— CONTRIBUTORY NEGLIGENCE.

Aside from the "last chance" doctrine, there can be no recovery for the death of a woman at a railroad crossing, where she was in possession of all her faculties, and, while standing at a lamp post to let a freight train pass, had but to turn her face eastward to see the approaching engine by which she was killed, and there was nothing to obstruct her vision, and, had she looked, she would have seen the engine 200 feet away when she was 25 feet from the track, though the engine was running at an unlawful speed, and the engineer negligently failed to whistle or ring the bell, and there was no watchman at the crossing, as the railroad was legally bound to have there.

2. NEGLIGENCE (§ 83) — LAST CHANCE DOCTRINE.

It is only where it appears that contributory negligence has been superseded in the chain of causal events by negligence of defendant in failing to reasonably employ an opportunity to discover the peril and avoid the injury, that the last chance doctrine comes into play, and contributory negligence ceases to be a good defense.

3. RAILROADS (§ 338)—CROSSING ACCIDENTS— NEGLIGENCE—LAST CLEAR CHANCE.

In order to convict a railroad company of negligence, within the doctrine of the last clear chance, in running down a person at a crossing, facts and circumstances must be adduced from which an inference may be reasonably drawn that there was something in the appearance of the person when he started to approach the track to indicate to an ordinarily careful person in the situation of the engineer that he was unconscious of the approach of the engine, and, if not warned, would walk into danger.

4. RAILROADS (§ 338)—CROSSING ACCIDENT— LAST CHANCE DOCTRINE.

Under the last chance doctrine, the bare fact that a person started to walk toward a track on which an engine was approaching the crossing, of itself, will not support an inference that the engineer knew that the person was unconscious of the approach of the engine, and, if not warned, would walk into danger.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by William R. Gumm against the Kansas City Belt Railway Company. From a judgment for plaintiff, defendant appealed to the Supreme Court, and the case was transferred to the Court of Appeals. Reversed, and cause remanded.

Lathrop, Morrow, Fox & Moore and Cyrus Crane, for appellant. Ben T. Hardin, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for the death of his wife, which he alleges was caused by the negligence of defendant. A trial resulted in a verdict and judgment for plaintiff in the sum of $5,000. An appeal was allowed defendant to the Supreme Court, but the case was afterward transferred to this court under the recent act of the Legislature increasing the jurisdiction of the Courts of Appeals. Laws 1909, p. 397.

The death of Mrs. Gumm occurred in the morning of July 20, 1904, at the intersection of Twentieth and Locust streets, public streets in Kansas City. The tracks of defendant's railroad — three in number — run east and west, and cross Locust street at its intersection with Twentieth street. To the east of Locust street (the course of which is north and south) the tracks run straight a distance of 432 feet and then curve to a southeasterly course. Mrs. Gumm lived on Locust street, a short distance south of the railroad tracks. She was 62 years old, well preserved and vigorous. Her hearing was acute, and her eyesight so good that she did not use glasses even for reading. She had gone on some errand to a place several blocks north of the railroad, and was returning home when death overtook her. She had walked south on the sidewalk on the east side of Locust street until she reached the railroad crossing. There she stopped to await the passage over the crossing of an eastbound freight train which was running on the south track. The point where she stopped was at or very near a lamp post which stood a few feet north of the north railroad track, and about 25 feet from the middle track, which was the main line used by west-bound trains. As the rear end of the freight train began to clear the crossing, she started forward at an ordinary gait, and proceeded to a point near the north rail of the middle track, when she was struck by the end of the pilot beam of a west-bound engine, and hurled across Locust street, where she fell to the north of the track. The engine, drawing a passenger train, was running 20 to 25 miles per hour, and approached the crossing without ringing the bell. There is evidence that the whistle was blown for a street crossing several blocks to the east; but the weight of plaintiff's evidence sustains the contention that no warning of the approaching train was given by bell or whistle. Just as the engine struck the unfortunate woman, the whistle emitted a prolonged shriek; but the warning came too late. No watchman was stationed at this crossing, though the ordinances of the city, introduced in evidence, required defendant to maintain a watchman there. Another ordinance forbade the running of trains over this crossing at a greater speed than 6 miles per hour.

While Mrs. Gumm was standing at the lamp post, and during her progress to the point of collision, there was nothing to obstruct her view to the east. Had she looked, she could have seen the engine, which could not have been more than 200 feet from the east line of Locust street when she started to go over the crossing. There is evidence that the east-bound freight engine was emitting quite a volume of smoke; but, even when considered in the light most favorable to the cause of action, the evidence does not justify a reasonable inference that the approach of the passenger engine was appreciably obscured by this smoke. There was nothing in the appearance of the woman that suggested to the witnesses who observed her that unconsciously she was going to her death. A milkman who knew her saw her standing at the lamp post, with her back to the north and her face turned southward. He was some distance north of her, and, of course, could not observe what was engaging her attention.

On direct examination, he testified, in part: "Now, Mr. Negus, I will ask you to state, if you can, to the jury, whether the woman was looking to the south, or east, or west, at the time she was standing in the place you have indicated. A. My idea is she was looking east. Mr. Crane: I move that the answer of the witness be stricken out; it being his idea about it. The Court: The motion is sustained, and the jury will disregard entirely the statement of the witness that his idea [was] she was looking east. State, if you know. * * * Q. Now, Mr. Negus, the woman was standing, as you have testified, by the lamp post, with her back to the north. I will ask you to state to the jury in what direction she was looking. A. I will state to the jury it was pretty hard for a man to tell which way she was looking. She had a shaker on, and it is pretty hard work for me to tell which way she was looking. I would not be able to tell just which way she was looking. Q. She was standing still, at the time, was she? A. Yes, sir. Q. Now, then, from where you were standing, did you have a view of the Belt Line tracks east of the crossing? A. Yes, sir. * * * Q. From the point where Mrs. Gumm was standing, could a person have a good view of the Belt Line tracks east? A. Yes, sir. Q. What was on the Belt Line tracks there at that moment, with reference to trains; that is, east, I mean? A. There was a freight train going east on the side track. Q. Which track was that on — the north track or the south track? A. On the south track. * * * Q. (by the Court). Just describe what happened, in your own language — what you saw done and what happened, beginning with Mrs. Gumm standing there. A...