Jackson v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 08 May 1900
• Court: Missouri Supreme Court
• Parties: JACKSON v. KANSAS CITY, FT. S. & M. R. CO.

58 S.W. 32

157 Mo. 621

JACKSON v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

RAILROADS — PERSONS ON TRACK — WRONGFUL KILLING — SPEED — ORDINANCES — POLICE POWER — CONTRIBUTORY NEGLIGENCE — PLEADING — JUDICIAL NOTICE — INSTRUCTIONS.

1. A complaint in an action for death of plaintiff's husband, killed by one of defendant's trains running at a rate of speed forbidden by ordinance, alleging that defendant railroad runs through the city of W., and that there was an ordinance in said city regulating the speed of railroad trains, in effect alleged that W. was a municipal corporation, and need not specifically allege its incorporation or state its class, since the court will take judicial notice of the class to which such city belongs.

2. In an action for death of plaintiff's husband, killed by one of defendant's trains running at a rate of speed prohibited by ordinance, the journal of the proceedings of the board of aldermen, including the ordinances adopted, and entitled "Revised Ordinance of the City of W.," produced by the mayor, was properly admitted in evidence.

3. In an action for the death of plaintiff's husband, killed by one of defendant's trains running at a rate of speed forbidden by ordinance, the complaint need not allege a contract to comply with the ordinance between defendant and the city, since such ordinance was valid as an exercise of the police power of the city, and binding on all within the city.

4. Where a complaint in an action for the killing of plaintiff's husband by one of defendant's trains running at a rate of speed prohibited by ordinance alleged the killing by defendant's train, the ordinance, and the violation thereof by defendant, it states a cause of action, since the violation of the ordinance was negligence per se, and an action for damages may be based thereon.

5. Where plaintiff's husband was killed by being struck by one of defendant's trains, the fact that he was a trespasser will not excuse the defendant, if the deceased was killed by reason of its negligence.

6. Plaintiff's husband was killed by being struck by one of defendant's trains. At the time he was very old, and his mind and body much impaired, but he was not devoid of reason and understanding. In an action for such killing, an instruction was given that, in determining the contributory negligence of deceased, the jury should consider his mental condition, and, if they found from the evidence that he was devoid of reason and understanding from infirmity of mind, then he could not be guilty of such contributory negligence as would bar a recovery, and their verdict should be for plaintiff, if they found that defendant was running its train at a rate of speed prohibited by ordinance. Held, that the evidence did not warrant such an instruction, since it did not show that deceased had no mind at all, and he should exercise care and caution commensurate with his mental condition.

7. Where, in an action for the killing of a person by one of defendant's trains, an instruction was given that, if the jury should find that the mind and mental faculties of deceased were so impaired that he could not comprehend the danger to which he was exposed in attempting to cross the tracks as he did, they should consider such facts in passing on the question of his contributory negligence, such instruction was not prejudicial error, as singling out particular facts, since the only excuse for deceased in attempting to cross in front of the train was the lack of capacity to see and appreciate the danger.

8. In an action for the killing of plaintiff's husband by one of defendant's trains, running at a rate of speed prohibited by ordinance, an instruction that, even if the jury should find that the train was running in violation of the ordinance, still they could not find for plaintiff unless they also found that, after the engineer discovered deceased on the track, he could have stopped the train in time to prevent injury had he been running not to exceed the rate allowed, should have been given, since plaintiff should show that her husband's death was caused by the excessive speed of the train.

9. Where deceased, an infirm old man, walking beside a railroad track, turned and crossed in front of an approaching train, an instruction that, deceased being in a safe place when first seen by the engineer, the engineer had the right to presume that he would not go on the track, and was not required to attempt to stop the train until he saw that deceased was intending to go on the track, and that the engineer had the right to presume that deceased had sufficient intelligence to avoid danger, in the absence of evidence that he knew the mental condition of deceased, was improperly refused.

10. Plaintiff's husband was very old and infirm in mind, and while his wife was temporarily absent he wandered away from home, and went on the tracks of defendant, where he was struck by a train and killed. Deceased was disposed to wander away from home, but was not inclined to go to any particular place or places of danger. Plaintiff and deceased were poor, and lived alone. Held, that plaintiff was not guilty of any negligence contributory to the death of her husband.

11. The fact that deceased was struck and killed while crossing defendant's tracks in its yards, and not at a place used for crossing, does not absolve defendant from observance of an ordinance regulating the speed of trains, since such ordinance applies to all parts of the city.

Appeal from circuit court, Howell county; James Orchard, Special Judge.

Action by Margaret Jackson against the Kansas City, Ft. Scott & Memphis Railroad Company for the killing of her husband. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action by plaintiff, the widow of Samuel Jackson, deceased, to recover of defendant the sum of $5,000 for the death of her husband, which occurred June 12, 1895, at Westplains, Mo., through being struck by one of defendant's passenger trains as he was walking across the railroad track in its yards at that place. The petition alleged: "That on said day, and long prior thereto, there was duly passed and in force an ordinance in the said city of Westplains, regulating the speed of railroad trains and cars within the corporate limits of said city, and prohibiting and making it unlawful for trains and cars to be run within said corporate limits at a greater rate of speed than six miles per hour. That on the said 12th day of June, 1895, the said Samuel Jackson started across defendant's said railroad track near its depot in said city of Westplains, and within the corporate limits of said city, and at a point where divers persons ever have and do cross said track, and while so crossing said track, and just as he was across and leaving the same, he, the said Samuel Jackson, was struck and instantly killed by one of defendant's passenger trains, then and there being run and operated by defendant's agents, servants, and employés. That the said Samuel Jackson was, at the time of his death, eighty-eight years of age, and feeble and infirm in body and in mind. That, at the time said Jackson was struck and killed as aforesaid by defendant's train of cars as aforesaid, the said train was being run negligently and carelessly at a great rate of speed, and far in excess of six miles per hour. Plaintiff says, by reason of the negligence and carelessness of defendant's agents, servants, and employés, in running and operating said passenger train at a great and rapid speed, and in violation of said ordinance in said city of Westplains, the said Samuel Jackson was struck and killed, by reason of which plaintiff says she is damaged in the sum of five thousand dollars, for which she prays judgment." The defenses were a general denial; that deceased was a trespasser upon defendant's tracks; that his death resulted from his own negligence, and negligence upon the part of plaintiff in permitting her husband to wander away from his home unattended, and to walk along and upon defendant's track at the time and place where the accident occurred.

Deceased was far advanced in life, being at the time of his death over 88 years of age, and very feeble in body and mind. His disposition was to wander away from home. His mental weakness was such that he could not remember localities, and, after being absent from home a few hours, upon being returned thereto he would not at times recognize it. On the morning of the accident the plaintiff, after washing the breakfast dishes, went to a grocery store to purchase something for dinner. When she left deceased was sitting outside of the house, but during her absence he had gotten up and gone elsewhere, and she started out to find him. She had gone but a short distance when she was informed that he had been struck by a train. At the time of the trial she was 72 years of age. They were poor people, and lived alone. It does not appear where deceased was or went after his wife left him outside his house, until he was seen walking westerly between defendant's tracks in its yards at Westplains north of its stock yards, and between the public crossings of two streets, Lincoln and Washington avenues, which are about 800 feet apart. Defendant's main track runs through Westplains in an easterly direction, crossing a bridge or trestle as it approaches from the west on a slight curve, running thence about 300 feet to the crossing of Lincoln avenue, just west of which a side track branches off on the southern side of the main line. From Lincoln avenue the tracks run in practically a straight line through the railroad yards, past the stock yards, coal house, a warehouse, and the freight depot, — a distance, as has already been stated, of about 800 feet, — to Washington avenue. About 130 feet east of the Lincoln avenue crossing another side track branches off on the north side of the main line, and runs easterly....