Hamilton v. Kansas City Southern Ry. Co.

Decision Date31 May 1913
Citation157 S.W. 622
PartiesHAMILTON v. KANSAS CITY SOUTHERN RY. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by E. E. Hamilton against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff is the widow of W. J. Hamilton, and sues for injuries causing his death in two counts: (1) That defendant negligently ejected him from its train while a passenger thereon, and in such a state of intoxication as to be unable to care for his own safety, at a place which was known by defendant to be dangerous. (2) That her husband was killed at a point on the track of defendant midway between the station of Lanagan and the flag station of Madge or Elk Springs, where its track was commonly used as a pathway, and when defendant was under the duty to look out for persons so using it, and where he was killed by the negligent failure to stop the train after he could could have been seen on the track at a sufficient distance to have stopped the train, if that duty had been observed. The answer was a general denial and plea of contributory negligence and of the unconstitutionality of the statute sued upon.

The evidence for the plaintiff was that her husband, while drunk, became a passenger on defendant's road at Neosho, about 7 o'clock p. m. June 15, 1908; that his ticket read to Lanagan, a town south of Neosho; that after he had passed his point of destination he was assisted from the train at a flag station, 2½ miles farther south, known as Madge or Elk Springs. It was about 9 o'clock when the train reached this point. There was a post office there, but no ticket office. Five or six families lived there, but there was no hotel or boarding house. Plaintiff's husband, although drunk at the time, applied to one of the residents, Mr. Kinney, for the services of his son to conduct him across a railroad bridge, 800 feet long and situated about 250 feet north of the town. This lad returned after he had performed the service, and the plaintiff's husband was not thereafter seen until his body was discovered next morning on the east side of defendant's track about one mile from the flag station, or halfway between it and Lanagan. The body gave evidence that the deceased had been struck and killed by a passing train. Only two trains passed that point on that night, one a freight at 11 p. m., the other a passenger at 11.45 p. m. There was no evidence which of the trains caused the death of plaintiff's husband. When discovered on the morning of June 16th, his body was lying at a spot 200 yards north of a 10-degree curve in defendant's road, and which would have been visible to a person on the lookout of a northbound train at a greater distance than 200 yards. There was a country road between Elk Springs and Lanagan which crossed several streams, some of which were not fordable at the time of the accident. Many persons used the railroad track and bridge in going from Elk Springs to Lanagan. The defendant's evidence negatived any knowledge of the accident and tended to show that its track was fenced, and trespassers were warned not to use it.

At the conclusion of the trial the jury returned a verdict for $5,000. Defendant moved for judgment nothwithstanding the verdict, on the ground that the statute under which this action was brought, after its amendment in 1905, was violative of the federal and state Constitutions in certain respects pointed out in its answer in this cause, for which reason defendant prosecuted its appeal to this court, where it complains of the refusal of the trial court to sustain its demurrers to the evidence and the giving and refusing instructions and other matters, which, if necessary, will be adverted to in the opinion.

Samuel W. Moore and Cyrus Crane, both of ...

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29 cases
  • Cardinale v. Kemp
    • United States
    • Missouri Supreme Court
    • July 1, 1925
    ...of the eye. This cannot be done. Hays v. Hogan, 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127; Hamilton v. Railway, 250 Mo. 715, 157 S. W. 622; Yarnell v. Railway, 113 Mo. 570, 21 S. W. 1, 18 L. R. A. 599; Swearingen v. Railway, 221 Mo. 644, 120 S. W. 773; Swartz v. F......
  • Cluett v. Union Electric Light & Power Co.
    • United States
    • Missouri Supreme Court
    • March 13, 1920
    ...1, 25 L. R. A. (N. S.) 1179, 17 Ann. Cas. 888; Fritz v. Railroad, 243 Mo. 62, 79, 80, 148 S. W. 74, and cases cited; Hamilton v. Railroad, 250 Mo. 714, 722, 157 S. W. 622; Kane v. Railroad, 251 Mo. 13, 46, 47, 157 S. W. 644; Hartman v. Railroad, 261 Mo. 279, 286, 168 S. W. 1143; Strother v.......
  • Burns v. Joyce and Walters
    • United States
    • Missouri Court of Appeals
    • April 6, 1942
    ...(10) There was no evidence in this case to make a jury question, and it was error to submit the case to the jury. Hamilton v. K.C. Southern Ry. Co., 250 Mo. 714, 157 S.W. 622; Whitesides v. C.B. & Q.R.R. Co., 186 Mo. App. 608, 172 S.W. 467; George v. Mo.-Pac. R.R. Co., 213 Mo. App. 668, 251......
  • Bates v. Brown Shoe Co., 34948.
    • United States
    • Missouri Supreme Court
    • May 3, 1938
    ... ... 551; Yarnell v. K.C., F.S. & M. Ry. Co., 113 Mo. 570, 21 S.W. 1; Hamilton v. St. Louis-S.F. Ry. Co., 318 Mo. 123, 300 S.W. 787; Bibb v. Grady, 231 ... Wabash Ry. Co., 221 Mo. 644, 120 S.W. 773; State ex rel. City of Macon v. Trimble, 12 S.W. (2d) 727. (2) Under the well-settled rule, ... L., I.M. & S. Ry. Co., 126 Mo. 143, 28 S.W. 866; Ruschenberg v. Southern Elec. Ry. Co., 161 Mo. 70, 61 S.W. 626; Koenig v. Union Depot Railroad ... Beaber v. Kurn, 91 S.W. (2d) 70; Kelly v. Kansas City B. & L. Assn., 229 Mo. App. 686, 81 S.W. (2d) 440; Am. Veterinary ... ...
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