Klene v. St. L.-S.F. Railway Co.

• Citation: 9 S.W.2d 950
• Decision Date: 06 October 1928
• Docket Number: No. 26437.,26437.
• Parties: MARY B. KLENE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.
• Court: United States State Supreme Court of Missouri

9 S.W.2d 950

MARY B. KLENE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.

No. 26437.

Supreme Court of Missouri. Division Two.

October 6, 1928.

Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.

DISMISSED.

Shepard & Hawkins for appellant.

E.T. Miller and Ward & Reeves for respondent.

HENWOOD, C.

This is a statutory action for damages in the sum of $10,000, filed in the Circuit Court of Pemiscot County, in which Mary B. Klene, as plaintiff, alleges the negligence of the defendant as the cause of her husband's death. The trial resulted in a verdict and judgment for the defendant, and the plaintiff appealed.

The plaintiff pleaded, and therefore submitted, her case under the humanitarian doctrine alone. The defendant stood on its demurrer, which was offered and overruled at the close of the plaintiff's evidence. The record shows that, on the same day plaintiff's motion for a new trial was presented and overruled, she applied for and was granted an appeal to this court, and also filed her bill of exceptions. The bill of exceptions so filed does not contain a transcript of the evidence, but, in lieu thereof, the following statement: "The plaintiff introduced evidence tending to support the allegation of her petition." Necessarily, appellant's abstract of the record and the briefs on both sides are limited to the ultimate facts stated in the petition, and are silent as to any particular fact or facts developed at the trial. For the want of any other statement of the case, we quote the petition in full, as follows:

"The plaintiff for her cause of action states that the defendant is and was at all the times hereinafter mentioned, a railroad corporation, duly organized, incorporated, operating and existing under and by virtue and authority of the laws of the State of Missouri; and at all said times the defendant was the owner and operator of a line of railway in and through Pemiscot County, Missouri, and in and through the city of Hayti, in said county and state, over which said line of railway the defendant at all said times, ran and operated its locomotive engines and trains of cars.

"The plaintiff further states that at all the times mentioned herein she was the lawful wife of one H.J. Klene; that on the 30th day of December, 1923, and within six months next before the filing of this petition, the said H.J. Klene, plaintiff's husband, in the daytime was lawfully on and walking along a public street or highway namely, Third Street, in the city of Hayti, Pemiscot County, Missouri; that said Third Street on said date was, and for a long time prior thereto had been, a public street and public highway; that a long time prior to said date, the defendant had constructed its line of railway across said street and at said crossing had also constructed a railroad crossing, and that the public generally had been using said street and said railway crossing and the defendant had been operating its locomotive engines and trains of cars along its said line of railway and over its said railroad crossing; that said use of said crossing by the public and also by the defendant continued down to the time complained of herein; and that said crossing was in a densely settled portion of the city of Hayti, and its use by the public was frequent, and by reason of its location and use, which was known to the defendant, the defendant had reason to expect to find and anticipate the presence of persons upon or about to enter upon said crossing at all hours both day and night, and it was the duty of the defendant to keep a lookout for persons upon or about to enter upon said crossing; and to use reasonable precaution to avoid injuring them; and it was also the duty of the defendant to give the warning signals required by law when about to use said street crossing with its locomotives or trains, and to operate its trains according to the speed limit and speed ordinances of said city and to use reasonable means and precautions to warn persons upon or about to enter upon said crossing to avoid injuring them.

"The plaintiff says that on said 30th day of December, 1923, her said husband was walking along and upon said Third Street approaching said crossing, where defendant's line crosses said street and he was oblivious to the fact that one of defendant's switch engines with a train of cars was about to pass over said crossing and was oblivious to his peril and danger; and the fact that he was oblivious to his peril and danger was known to the defendant, its servants, agents and employees in charge of said train, or could have been known to them, if they had exercised ordinary care; that said H.J. Klene was struck by said locomotive and train of cars and injured in the right side and right hip, from which injuries he died on the 10th day of February, 1924.

"Plaintiff says that notwithstanding the carelessness and negligence of her said husband in entering upon said crossing the defendant, its servants, agents and employees were also careless and negligent in the respects hereinafter specifically assigned and became liable to plaintiff upon the humanitarian doctrine for damages for the injuries inflicted upon and consequent death of her husband.

"Plaintiff says that the defendant, its servants, agents and employees in charge of said train and operating the same, were careless and negligent in the following respect: first, they were running such train at a greater rate of speed than they had the right to run or operate same under the ordinances of the city of Hayti; second, they failed to ring a bell or sound a whistle for said crossing within the distance required by law; third, they failed to keep any lookout for persons upon or about to enter upon or come within the danger zone of said crossing; fourth, they saw or by the exercise of ordinary care could have seen, that plaintif...