Hulen v. Wheelock, No. 26334.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRagland
Citation300 S.W. 479
Docket NumberNo. 26335.,No. 26334.
Decision Date07 December 1927
PartiesHULEN v. WHEELOCK et al.
300 S.W. 479
HULEN
v.
WHEELOCK et al.
No. 26334.
No. 26335.
Supreme Court of Missouri, Division No. 1.
December 7, 1927.

[300 S.W. 480]

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

Action by Kathryn Hulen against William W. Wheelock and others. Judgment far plaintiff, and defendants appeal. Reversed as to defendant Louisiana & Missouri River Railroad Company. Affirmed as to remaining defendants.

A. C. Whitson, of Mexico, Mo., and Charles M. Miller, of Kansas City, for appellants Wheelock, Bierd, and Louisiana & Missouri River R. Co.

Fry & Hollingsworth, of Mexico, Mo., for appellant A. P. Green Fire Brick Co.

Rodgers & Buffington, of Mexico, Mo., for respondent.

RAGLAND, J.


Plaintiff was a passenger on one of the trains of the Chicago & Alton Railroad Company, going from Fulton, Mo., to Mexico, Mo. As the train approached Mexico and after it had gotten within the city limits, it ran off the main line of the railroad through an open switch and onto a side track, where it violently collided with cars which were stored there. She seeks in this action to recover for personal injuries sustained as the result of the collision.

The defendant Louisiana & Missouri River Railroad Company (hereinafter called the railroad company) was the owner and lessor of the railroad over which plaintiff was traveling at the time of her injury; the Chicago & Alton Railroad Company was the lessee; defendants William W. Wheelock and William G. Bierd (hereinafter called the receivers) were operating the road as receivers of the Chicago & Alton, duly appointed by the District Court of the United States for the Eastern Division of the Northern District of Illinois; and defendant A. P. Green Fire Brick Company (hereinafter called the brick company) owned an extensive plant for the manufacture of brick, lying adjacent to both the railroad and the corporate limits of the city of Mexico.

The facts for the most part are not in dispute. The general direction in which the railroad ran from Fulton to Mexico was north. As it approached Mexico, however, it turned northeasterly on a 20-degree curve. On the north and west side of the curve and immediately adjacent thereto lay the plant of the brick company. From the main line of the railroad two spur tracks extended into the brick plant. They were connected with the main line by switches. The first or more westerly switch was known as switch No. 1; the second as switch No. 2. From No. 1 to No. 2 was 566 feet. There was still another switch 309 feet east or north of switch No. 2, and on the curve heretofore referred to, known as switch No. 3. At this switch a side track ran off the main line and paralleled it on the north and west side on into the city of Mexico. Switches Nos. 2 and 3 had what are called target switch stands. Including the lamp on top, which was not kept burning during the clay, each was 30 inches high from the tie on which it rested, and the target on each showed green when the switch was closed, but red when it was open. The colors on the targets, however, were somewhat faded and weather-stained.

The spurs running into the brick plant property were used for bringing in cars loaded with coal and material for the manufacture

300 S.W. 481

of brick and for taking out to the main line cars loaded with the finished product. For the accommodation of the brick company the receivers permitted it to move cars from the spurs heretofore mentioned out onto the main line and thence east through switch No. 3 onto the side track. On the morning of November 8, 1922, one Wanstreet, an employee of the brick company, under the direction of its superintendent, moved some box cars from one of the spurs of the brick plant out over the main line and through switch No. 3 onto the side track and spotted them 208 feet east of the switch. He completed the operation about 10:30 a. m. Wanstreet had had some experience as a railroad switchman; he was familiar with the time schedule upon which the receivers ran their passenger trains; and he knew that a train from the south was due at Mexico at 11:35 a. m. Notwithstanding, he left switch No. 3 open after completing the switching operation just referred to and went on back to the brick plant. The fact that the switch had been left open did not occur to him again until about noon, when he saw the passenger train from the south coming. Upon seeing it he ran for the switch, but the train reached it before he did and ran on through mitt the side track and into the cars he had set there. Plaintiff was a passenger on the train, and as a result of the collision received the injuries heretofore referred to.

The petition, after charging by appropriate averments that defendant brick company was guilty of a specific act of negligence, to wit, the leaving of switch No. 3 open, alleged:

"That the negligence aforesaid of defendant brick company caused and directly contributed and concurred to cause and became a part of the direct cause of the plaintiff being injured in the manner and to the extent as hereinafter stated."

The petition next, after averring that plaintiff was a passenger on one of the trains of the defendant railroad company (meaning both the railroad company and the receivers), alleged:

"That while plaintiff was a passenger as aforesaid on defendant railroad company's said train and while said defendant was operating and running said train and when and while said train was at or about the west end of the city of Mexico, Mo., the defendant railroad company carelessly and negligently caused and permitted the said train on which plaintiff was riding to come in violent collision and to collide with another car and train of cars under the control of defendant, which said other car and train of cars were at the time of said collision on a side track and on the same track as the track the train ran on and along in which plaintiff was a passenger; that the negligence aforesaid of the defendant railroad company caused and directly contributed and concurred to cause and became a part of the direct cause of plaintiff being injured in the manner and to the extent hereinafter stated."

The answer of the defendant brick company, following a general denial, alleged:

"This defendant states that the employees of defendant receivers and of the defendant railroad companies in charge of said railroad locomotive and train of cars, described in plaintiff's petition, saw, or by exercise of ordinary care could have seen, that the rails of said stockyard switch, where they join the main line track, were open, that the switch stand which operates said stockyard switch was so turned as to show that said switch was open; that there were cars on said stockyard switch into which said locomotive and train of cars would run and collide, if said train ran through said open switch and onto said stockyard switch; and this defendant states that said employees of said defendant receivers and railroad companies saw, or by the exercise of ordinary care could have seen, the above conditions in ample time to have stopped said locomotive and train of cars, or in time to have stopped or checked the speed of said train before running into said open switch, or and before running said train into said cars on said stockyard switch, and could have avoided said collision described in plaintiff's petition.

"Wherefore defendant A. P. Green Fire Brick Company says that any injuries received by plaintiff, on the occasion of said collision described in her petition, were the result of negligence of the defendant receivers and railroad companies, as above set forth and that said injuries were not caused in any degree by this defendant."

The receivers and the railroad company answered with a general denial.

With respect to the last pleading on the part of the plaintiff, we have this recital in the abstract:

"That thereafter, respondent duly filed reply which was a general denial to the answers of appellants."

Following the opening statement and upon the first offer of evidence by plaintiff, defendants railroad company and the receivers objected to "the introduction of any evidence under the petition against them and under the opening statement of counsel, for the reason that the same do not state facts sufficient to constitute a cause of action against either of these defendants." The objection was overruled.

Plaintiff in chief offered evidence tending to show: First, that she was a passenger on one of the trains being operated by the receivers, and that while being so carried as a passenger the train upon which she was riding violently collided with cars standing on a side track, whereby she was injured; and, second, that said train ran off the main track through an open switch and onto the side track where the collision occurred, and that the switch through which it ran had been left open by an employee of the brick company under the circumstances heretofore

300 S.W. 482

narrated. After having offered this proof, in addition to proof showing...

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6 practice notes
  • Fowlkes v. Fleming, No. 27230.
    • United States
    • United States State Supreme Court of Missouri
    • 29 March 1929
    ...Co., 282 Mo. 685. (7) The verdict is not excessive. Meyers v. Wells, 273 S.W. 110; Powelson v. Ry. Co., 263 S.W. 149; Hulen v. Wheelock, 300 S.W. 479; Grott v. Shoe Co., 2 S.W. (2d) 785. Lewis v. Parking Co., 3 S.W. (2d) 244. LINDSAY, C. The plaintiff had judgment for damages in the sum of ......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • 8 December 1947
    ...so as to enable the "Gulf Coast Lines" to escape liability in the performance of a public duty. Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Booth v. St. Louis, I.M. & S. Ry. Co., 217 Mo. 710, 117 S.W. 1095; State ex rel. Bostian v. Ridge, 188 S.W. (2d) 941; Kirkland v. Charl......
  • White v. Teague, No. 38991.
    • United States
    • United States State Supreme Court of Missouri
    • 5 September 1944
    ...the jury found against the defendants Plaza Express Company and Carl Collier. Sec. 1228, R.S. 1939; Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Watts v. St. Joseph Lead Co., 243 S.W. 439; Augustus v. C., R.I. & P. Ry. Co., 153 Mo. App. 517, 134 S.W. 22. (5) Furthermore, the errors com......
  • Settle v. Baldwin, No. 39524.
    • United States
    • United States State Supreme Court of Missouri
    • 8 July 1946
    ...1939; 2 Hutchinson on Carriers, sec. 498, p. 543; Waldron v. Director Gen. of Railroads, 266 Fed. 196; Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Ross v. Louisville & N.R. Co., 172 So. 752; McCoy v. K.C., St. J. & C.B. Ry. Co., 36 Mo. App. 445; Kirkland v. Charleston & S.C. R......
  • Request a trial to view additional results
9 cases
  • Fowlkes v. Fleming, No. 27230.
    • United States
    • United States State Supreme Court of Missouri
    • 29 March 1929
    ...Co., 282 Mo. 685. (7) The verdict is not excessive. Meyers v. Wells, 273 S.W. 110; Powelson v. Ry. Co., 263 S.W. 149; Hulen v. Wheelock, 300 S.W. 479; Grott v. Shoe Co., 2 S.W. (2d) 785. Lewis v. Parking Co., 3 S.W. (2d) 244. LINDSAY, C. The plaintiff had judgment for damages in the sum of ......
  • White v. Teague, No. 38991.
    • United States
    • United States State Supreme Court of Missouri
    • 5 September 1944
    ...the jury found against the defendants Plaza Express Company and Carl Collier. Sec. 1228, R.S. 1939; Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Watts v. St. Joseph Lead Co., 243 S.W. 439; Augustus v. C., R.I. & P. Ry. Co., 153 Mo. App. 517, 134 S.W. 22. (5) Furthermore, the errors complai......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • 8 December 1947
    ...to another so as to enable the "Gulf Coast Lines" to escape liability in the performance of a public duty. Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Booth v. St. Louis, I.M. & S. Ry. Co., 217 Mo. 710, 117 S.W. 1095; State ex rel. Bostian v. Ridge, 188 S.W. (2d) 941; Kirkland v. Charlest......
  • Miller v. Terminal Railroad Assn., No. 37976.
    • United States
    • Missouri Supreme Court
    • 1 July 1942
    ...Am. St. Rep. 807; Williard v. Spartanburg U. & C.R. Co., 124 Fed. 796; Hukill v. Maysville & B.S.R. Co., 72 Fed. 745; Hulen v. Wheelock, 300 S.W. 479, 485. The reason upon which rests the rule making the lessor liable for the lessee's acts no longer prevails, and the rule itself becomes ina......
  • Request a trial to view additional results

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