Hall v. Baldwin

• Decision Date: 06 January 1936
• Docket Number: No. 18324.,18324.
• Citation: 90 S.W.2d 146
• Parties: HALL v. BALDWIN et al.
• Court: Missouri Court of Appeals

90 S.W.2d 146

HALL v.BALDWIN et al.

No. 18324.

Kansas City Court of Appeals. Missouri.

January 6, 1936.

Rehearing Denied January 27, 1936.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Action by Thomas J. Hall, administrator of the estate of Jesse Bryan Hall, deceased, against L. W. Baldwin and another, trustees for the Missouri Pacific Railroad Company.Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Thomas J. Cole, of St. Louis, and L. J. Bishop and D. C. Chastain, both of Butler, for appellants.

Cope & Hadsell and Roy W. Rucker, all of Kansas City, for respondent.

TRIMBLE, Judge.

Plaintiff, administrator of Jesse B. Hall, deceased, sued to recover for the wrongful death of decedent which occurred on September 20, 1933, caused by the servants of defendant who, as trustees, were operating the Missouri Pacific Railroad Company in bankruptcy under the United States District Court at St. Louis, Mo.He recovered judgment for $5,000.Whereupon motion for new trial being overruled, defendanttrustees duly appealed.

Trial was had before a jury on the first amended petition, which (after alleging that plaintiff is the father and now administrator of deceased, and that suit is brought in behalf of the heirs of said decedent, and that death was wrongfully brought about, on the aforesaid date, as a direct result of one of defendants' freight trains striking him, proximately caused by the negligence of the servants of defendants in the operation of said train, and also pleading the appointment and qualification of defendants as trustees by said United States District Court), formally set up that: "About the hour of 8:00 a. m., the said Jesse B. Hall, deceased, was walking in an easterly direction on the defendants' right of way at a place customarily and habitually used by pedestrians, and at or near the north rail of defendants' railroad tracks, and when deceased had reached a point about 450 feet east of a road running north and south through Levasy, Jackson county, Missouri, on account of the negligence and carelessness of the defendants and each of them, as hereinafter set forth, the said Jesse Bryan Hall was struck by one of defendants' eastbound freight trains, as direct result of which the said Jesse Bryan Hall received the injuries which resulted in his death as hereinbefore alleged."

Two grounds of negligence first alleged, namely, excessive speed and failure to keep a vigilant lookout, were abandoned before the trial, and the cause was submitted on an alleged violation of the humanitarian rule, set forth in the following words: "Defendants were negligent in that their duly authorized agents and servants operated said freight train into a violent collision with the said Jesse Bryan Hall, deceased, after they saw, or by the exercise of ordinary care, could have seen said deceased in a position of imminent peril and danger of being struck by said approaching freight train, and that the deceased was oblivious of his peril, and defendants could, in sufficient time thereafter, by the exercise of ordinary care and by the use of the means and appliances at hand, and with safety to the crew of said train, as well as * * * the train and its contents, have stopped the same, and have thus avoided running into and violently colliding with the deceased, thereby fatally injuring him, all of which defendants' duly authorized agents and servants negligently and carelessly failed to do."

The petition further alleged that said Hall, at the time of his death was 36 years of age, single and unmarried, having no children, either natural born or adopted, and left his father and mother, four brothers, and one sister, his parents being solely dependent upon him for support, and that the latter, by reason of his death, are deprived of his assistance, support, and maintenance, and then prayed for judgment in the sum of $10,000.

The amended answer, on which the case was tried, admitted that the said railroad company was a bankrupt and defendanttrustees were appointed and took charge of, and at the time of the alleged injury to said Hall were operating, the railroad as such trustees.

The answer further admitted that said Hall was killed by a train being operated on said railroad of which defendants are the trustees, but denied that they, or any of their agents, servants, or employees, were guilty of any negligence whatsoever.

The said answer further averred that at the time of Jesse Bryan Hall's injury "he was a man of full age, with unimpaired vision, but he was entirely deaf; that he well knew the location and direction of the tracks of the Missouri Pacific Railroad, and knew that trains were being operated thereon at regular intervals, and, notwithstanding such fact, said deceased voluntarily entered upon the right of way of the said railroad, and without paying any heed or attention to his own safety started to walk upon, along and across the tracks of said railroad, and at said time said deceased could, by the exercise of the slightest degree of care upon his part and by looking down and along the tracks of said railroad, have seen that the train was approaching, and could and would have known that if he stepped upon or along said tracks that he would be struck by the approaching trains, and that the employees and servants of the defendants would not be able to stop the train or slacken the speed thereof without injury to the said deceased if he went upon or near said track; but that, notwithstanding such facts, deceased voluntarily entered upon the right of way of the railroad, and without paying any heed or attention to his own safety started to walk upon, along and across the tracks of the said railroad, and at said time said deceased could, by the exercise of the slightest degree of care upon his part and by looking down and along the tracks of the said railroad, have seen that the train was approaching, and could and would have known that if he stepped upon or along said tracks that he would be struck by the approaching train, and that the employees and servants of the defendants would not be able to stop the said train or slacken the speed thereof without injury to the said deceased if he went upon or near the said track, but that, notwithstanding said facts, the deceased negligently and carelessly in broad daylight, walked upon or along the tracks of the said railroad and continued thereon without the knowledge of the servants and employees of the defendants, and that when the servants and employees of the defendants first observed or could have observed in the exercise of due care the deceased on the said track, it was then impossible to stop the said train or to slacken the speed thereof so as to prevent the injury to the deceased, and these defendants aver that the injury to and resulting death of the deceased Jesse Bryan Hall was due to his own contributory negligence."

The amended answer then denied every other allegation in the said first amended petition.The reply thereto was a general denial.

The evidence adduced in plaintiff's favor is that Jesse B. Hall was 37 years of age, had never been married, and was living with his parents on the father's farm of 165 acres.He was deaf and dumb, having been so from his second year, caused by disease.He left as his only heirs, his father, mother, four brothers, and one sister.He did farm work, not only on his father's farm, but also, on occasion, similar work for others in the community, and, except for his deaf and dumb affliction, was of average intelligence and ability.It was his custom to go to the town of Levasy nearly every day to purchase bread and supplies, etc.On the day he was killed, he went to town about 8 o'clock in the morning and bought three loaves of bread and a pair of shoes, all of which he was carrying in a grain sack thrown over his shoulder.

Defendants' single-track line of railway approaches Levasy from the west on a curve of about 3½ degrees to the southwest.Main street runs north and south near the west edge of said town and crosses the railway just west of the west end of the depot platform which is located on the south side of the railway.Immediately west of Main street, across from the depot and very near to the south line of the railway, is located a dwelling house, having large trees near to the west side thereof; the limbs of the northernmost tree extending over the right of way, at a height of 10 or 12 feet as appears from the photographs.One witness for plaintiff testified that this curve (i. e., the east end of it) begins about 300 feet west of the Main street crossing, but the photographs clearly show that this curve extends almost to the crossing At the depot, a house track leads off on the north side of the main line to the elevator adjoining the house track on the north.The east end of this elevator is about 425 feet east of the east side of the Main street crossing, which is 55 feet wide.East of the depot and south of the main track is the passing track.The evidence fails to show the distance between these tracks.

As heretofore stated, deceased was struck by a freight train consisting of an engine with 143 cars (24 of which were loaded) and a caboose.The train was equipped with air brakes operated by the engineer, and they were in good condition.As the train approached Levasy, it was traveling at a speed of 25 to 35 miles per hour.A whistling post is located a quarter of a mile west of the Main street crossing.It is undisputed that at this post the usual crossing whistle was blown.This crossing whistle consisted of two long, one short, and a long, given with a short interval between each.The first began at the whistling post, one-fourth mile west of the crossing which, as stated, was at the west end of the depot, and this series of four whistles continued until the last was sounded just as the engine reached Main...