Keele v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 20 May 1914
• Citation: 258 Mo. 62,167 S.W. 433
• Parties: KEELE v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Supreme Court

167 S.W. 433

258 Mo. 62

KEELE v. ATCHISON, T. & S. F. RY. CO.

Supreme Court of Missouri.

May 20, 1914.

1. APPEAL AND ERROR (§ 175) — ISSUES— PRESENTATION IN LOWER COURT.

Issues raised by the petition, but not submitted to the jury, are eliminated from the case, and cannot be considered on appeal in support of the verdict for plaintiff and the judgment rendered thereon.

2. APPEAL AND ERROR (§ 171)—QUESTIONS REVIEWABLE—THEORY OF CASE ADOPTED IN TRIAL COURT.

Where an action for the death of a child nearly 15 years old, struck by a train at a crossing, was tried on the theory that decedent was guilty of contributory negligence as a matter of law, and that the railroad company was liable only under the humanitarian doctrine, the court on appeal must treat decedent as an adult in determining the correctness of the judgment.

3. RAILROADS (§ 347)—ACCIDENTS AT CROSSINGS — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

Where an action for the killing of a person at railroad crossing was tried on the theory that decedent was sui juris, evidence of the surrounding conditions and the decedent's knowledge thereof and of her attention being diverted was competent only on the issue of decedent's negligence, and was immaterial where it was admitted that she was guilty of contributory negligence.

4. NEGLIGENCE (§ 97)—CONTRIBUTORY NEGLIGENCE—EFFECT.

Where the negligence of defendant and the concurrent contributory negligence of plaintiff resulted in injury to plaintiff, there can be no recovery, as a general rule.

5. RAILROADS (§ 338)—ACCIDENTS AT CROSSINGS—CONTRIBUTORY NEGLIGENCE—HUMANITARIAN DOCTRINE.

Where the negligence of a person struck by a train put him in peril while still so distant from the train that the trainmen could, by warning or by stopping, have avoided the accident after the discovery of his peril, the company was liable.

6. RAILROADS (§ 338)—ACCIDENTS AT CROSSINGS—CONTRIBUTORY NEGLIGENCE—HUMANITARIAN DOCTRINE.

Where trainmen negligently failed to maintain a lookout or give signals or slack or stop the train on approaching a crossing, and decedent was struck by the train at the crossing, having negligently moved from a place of safety to one of danger when the train was so near the crossing that the accident could not be averted, the humanitarian doctrine was inapplicable, and the doctrine of concurrent negligence operated to defeat a recovery.

7. RAILROADS (§ 338)—ACCIDENTS AT CROSSINGS—CONTRIBUTORY NEGLIGENCE—HUMANITARIAN DOCTRINE.

A person who approaches a railroad crossing at an ordinary gait in complete control of his own movement is not in danger, within the humanitarian doctrine, until he takes the last few fatal steps, or is so oblivious to his danger as to indicate a present intention to step on the track, and the engineer, seeing the person, may rely on the presumption that he will stop before stepping on the track before the approaching train until discovering the contrary.

8. RAILROADS (§ 348)—ACCIDENTS AT CROSSINGS — NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—HUMANITARIAN DOCTRINE.

A railroad train approached a highway crossing at an excessive speed without warning signals. A pedestrian approached the track, but there was nothing to indicate that she would step on the track in front of the train until about the time the train was on her, when it was impossible for the trainmen to stop to prevent running her down. Held, that there could be no recovery under the humanitarian doctrine.

9. COURTS (§ 488)—JURISDICTION—TRANSFER OF CASE TO SUPREME COURT—EFFECT.

Where a Court of Appeals transfers a cause to the Supreme Court because a constitutional question is involved, the whole case is in the Supreme Court for adjudication.

10. APPEAL AND ERROR (§ 1097)—JUDGMENT —LAW OF THE CASE—RES JUDICATA.

Where the Supreme Court has jurisdiction of the whole case, when transferred to it by a Court of Appeals because a constitutional question is involved, a decision of a Court of Appeals on a prior appeal is not binding on the Supreme Court either under the doctrine of res judicata or under the theory of the law of the case.

Bond, J., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Rosetta Keele against the Atchison, Topeka & Santa Fé Railway Company. There was a judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals, and it transferred the cause to the Supreme Court. Reversed.

See, also, 151 Mo. App. 364, 131 S. W. 730.

Thomas R. Morrow and Cyrus Crane, both of Kansas City, James P. Gilmore, of Tulsa, Okl., and John H. Lathrop and Geo. J. Mersereau, both of Kansas City, for appellant. Charles A. Stratton, of Jefferson City, and Bird & Pope, of Kansas City, for respondent.

LAMM, C. J.

The parents of Pearl E. Keele, a minor, sued the corporate defendant in the Jackson circuit court for her negligent death where a county road crossed defendant's track in Kansas. Presently, the father dying, plaintiff, the mother filed an amended petition, and (over the answer of defendant taking issue thereon) was allowed to prosecute the action to a judgment in her sole name. She had a verdict for $5,000. From a judgment following, defendant appealed to the Kansas City Court of Appeals. That court, being of opinion constitutional questions were involved, sent the case here, and (as we overruled a motion to retransfer it) here it is.

Questions are raised on constitutional law, on pleadings, on practice, on evidence, on instructions given for the plaintiff and refused to defendant. One of the latter hinges, as said, on the sufficiency of the evidence to make a case, either under the law of negligence as administered in Kansas or in this state. That contention seeks the fact and trial issues thereon. If, under grounds of recovery (relied on pro) and the defense of contributory negligence (relied on con), there is no case on the facts, then the case breaks at that point, and all other questions become unimportant. If there be a case on the facts, then other questions remain to be reached and disposed of in their order. Attend to the matter from the viewpoint of case or no case.

We omit pleadings. Let it be assumed that plaintiff's principal instruction was within the averments of the petition. It suggests the gravamen of the action, indicates the trial theory, and reads in part, and so far as material, thus:

"The court instructs the jury that Pearl E. Keele, deceased, was negligent in approaching and going upon the track of the defendant upon which she was struck by a train of the defendant; still, if you further believe and find from the evidence that said Pearl E. Keele was approaching and going upon the track of the defendant upon which she was struck and into a position of peril of being struck by said train, and that she was unaware of and oblivious to such danger, and if you further believe and find from the evidence that the engineer or fireman of said train, by keeping a vigilant lookout ahead of him, could, by the exercise of ordinary care, have discovered that said Pearl E. Keele, deceased, was approaching said track, and was going into a position of peril of being struck by said train, and that she was unaware of and oblivious of her danger, and that, if she was not warned before she went on said track, she would place herself in the way of said train, and if you further believe and find from the evidence that said engineer or fireman could, by the exercise of ordinary care, have warned said Pearl E. Keele of the approach of said train by the whistle or bell of said engine before she went on said track, and could thereby, by the exercise of ordinary care, have avoided striking and injuring her, and negligently failed to give such warning of the approach of said train, and if you further believe and find from the evidence that, if such warning by the whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would not have been struck and injured by said train, you will find for the plaintiff. And you are further instructed that, in the absence of evidence or circumstances to the contrary, you may assume that, if such warning by the whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would have heard it. And," etc.

There was a bundle of specifications of negligence in the petition, besides those set forth in the instruction, but all of them fell out of the case, except: (1) Absence of ordinary care in failing to keep an outlook; and (2) failing to warn decedent by bell or whistle as she was going on the track oblivious to her own danger.

There was, as said, a plea of contributory negligence. With that instruction, and the pleadings as indicated, kept in mind, attend to the facts.

At 6:30 in the afternoon of a day in May, 1906, whilst yet full day, Pearl E. Keele (on foot from the north) walked to the south on a north and south public road in Wyandotte county, Kan. That road crossed at right angles a cluster of, say, 15 tracks in defendant's yard in the country, west of the limits of a town called Argentine. The tracks in said yard ran east and west. Two of them, those to the south, were passenger tracks; the rest to the north were freight and side tracks.

A photograph in evidence shows the place, except as to cars standing on the freight tracks, to be presently mentioned. In the picture the eye looks to the west; the south side being to the left and the north to the right. We cannot do better than to reproduce it; for all sides admit its accuracy and it depicts the scene at one stroke thus:

The heavy, dark, irregular line cutting the yard tracks indicates the road crossing and the line of travel of decedent. As decedent, heading south, reached the first rail of the last track on the left, she was struck by the pilot beam of an engine pulling a passenger train east and running very fast, say 40 or 50 miles an hour, and was instantly killed, being tossed back north and to the east a...