Koontz v. Wabash Ry. Co.

• Citation: 253 S.W. 413
• Decision Date: 11 June 1923
• Docket Number: No. 14738.,14738.
• Parties: KOONTZ v. WABASH RV. CO. at al.
• Court: Court of Appeal of Missouri (US)

253 S.W. 413

KOONTZ v. WABASH RV. CO. at al.

No. 14738.

Kansas City Court of Appeals. Missouri.

June 11, 1923.

Rehearing Denied July 2, 1923.

Appeal from Circuit Court Jackson: County; Charles R. Pence, Judge.

"Not to be officially published."

Action by Elizabeth Koontz against the Wabash Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Homer Hall, of St. Louis, Sebree & Sebree, of Kansas City, for appellants.

John C. Grover and E. M. Tipton, both of Kansas City, for respondent.

ARNOLD, J.

This is a personal injury suit. The facts shown by the record are that en the morning of June 14, 1020, plaintiff, a woman under 30 years of age, was on her way to the station of defendant in Macon, Mo., where she was to take a south. bound train, due to leave about 10:30. The station, located on the west side of the Wabash tracks and south of Union street (a street running east and west), was five blocks southwest of plaintiff's home. Plaintiff's husband had preceded her to the station to purchase her ticket and check her baggage.

Plaintiff left her home to go to the station at about 10:10 a. m., and was somewhat delayed on her way in telling some neighbors good-bye and in getting her mail at the post office. While at the home of one of said neighbors she called defendant's station agent on the telephone, and was told that the train was on time. After securing her mail she went north to the intersection of Duff and Onion streets, which is a short block east of the point where the Wabash track crosses Union street. On her way she said good-bye to another friend, a Mrs. Van Cleve, and hurried on past her by running and walking fast. Plaintiff was on the south side of Union street, and going west. Union street is paved, and on the south side thereof a brick sidewalk extends to a point a few feet east of the railroad right of way. To travel west from that point on the extended line a the sidewalk one would be required to cross a ditch and pass over some brush. So there is a path from the place where the walk ends leading in a northwesterly direction to the paved portion of the street. In approaching the station pedestrians on the south side of Union street usually follow the sidewalk to its end, and then pursue the path to the paved portion of the street. The sidewalk on the north side of Union street is of concrete, and pedestrians using that walk cross the railroad tracks and then turn south to the station. Persons using the sidewalk on the south side of said street, after reaching a point about 30 feet east of the east rail of the railroad track, turn southwest and use a pathway leading diagonally toward the station platform and generally parallel with the railroad track. The tracks ere about 5 feet higher than the east line of the right of way at Union street, thus making a steep incline going west.

At about the time plaintiff reached the said point 25 or 30 feet east of the track Mrs. Van Cleve, who was some distance behind her, saw the engine of the train about to cross Washington street, the first street north of Union, and called to plaintiff, who glanced down over her right shoulder in the direction of Mrs. Van Cleve, but did not see her, and kept on running toward the station. Plaintiff, at the time, was wearing a hat that somewhat obscured her face and vision. When she reached a point about 15 feet from the track she passed south of Dr. J. E. Smith, who was in the paved part of the street, walking in a northwest direction. His attention was attracted to plaintiff by her running, but he did not stop. He turned his head again to the northwest, and for the first time saw the on-coming train, which was then about 50 to 60 feet north of plaintiff, who by this, time was about 3 or 4 feet east of the east rail of the track. The testimony tends to show that no bell was rung, no whistle blown, or other warning given of the approaching train. The train was running at a speed estimated at 5 or 6 miles per hour, and when plaintiff was midway between the rails of the track, or in the act of stepping over the west rail thereof, she was struck by the engine, knocked down in front of it, and rolled over for a distance of about 50 feet, finally landing parallel with the track, where she lay between the west rail and the station platform. At the time of the collision plaintiff's husband was standing on the steps of the old passenger coach which at that time was serving as a station. He ran to plaintiff's aid, and held her head down while part of the train which protruded over the rail passed over her and then came to a stop.

The testimony of plaintiff is that she did not see nor hear the train, and did not know it was coming. Plaintiff was rendered unconscious, and was taken to her home in an ambulance. While being so conveyed she regained her senses for a short time, and then relapsed into unconsciousness.

The action is based upon the humanitarian rule, and, while other acts of negligence were charged in the petition, all seem to have been abandoned during the progress of the case, and the cause was submitted under the humanitarian or last clear chance rule. The negligence pleaded, in so far as it applies this rule, is as follows:

"Plaintiff says that while approaching said track she was oblivious of danger, and the servants of the defendant * * * saw or could have seen and observed her position of peril in time to have exercised ordinary care by ringing the bell, sounding the whistle, or slackening the speed, or to have stopped the train, and thus prevented striking and injuring plaintiff which they failed to do, "out that said servants' of the defendant the Wabash Railway Company and the defendant Sid Briggs carelessly and negligently failed to exercise ordinary care to prevent injuring plaintiff after such discovery," etc.

The answer is a general denial coupled with, a plea of contributory negligence, as follows:

"* * * That whatever injuries, if any, the plaintiff may have received at the time and place set out in her petition, the same were due to and the result of her own carelessness and negligence in this, to wit, that, although she was, or in the exercise of ordinary care should have been, familiar with the conditions surrounding her and saw, or by the exercise of ordinary care could have seen the approach of the train mentioned in her petition, she carelessly and negligently, and in disregard of her own welfare, stepped directly in front of said train, and placed herself in imminent danger of being struck thereby."

The answer of the codefendant, Sid Briggs, the engineer, was identical with the above-quoted answer of the railroad company. The cause was tried to a jury, and at the close of plaintiff's evidence instructions in the nature of demurrers were asked on behalf of both defendants, and by the court refused. Verdict and judgment were for plaintiff in the sum of $6,000. Motions for new trial and in arrest were unsuccessful, and defendants appeal.

It is first urged that the trial court erred in overruling defendants' demurrers to the evidence. It is charged that the petition does not state a cause of action under the humanitarian doctrine; that it omits a necessary allegation, namely, that the enginemen knew, or by the exercise of ordinary care could have known, that plaintiff was oblivious to her peril; that it is not sufficient to allege that plaintiff was in peril and oblivious thereto, but there must also be an allegation that the enginemen knew, or by the exercise of ordinary care could have known, of the obliviousness of plaintiff to that peril.

The part of the petition pertinent to this point is:

" * * * While approaching said track she was oblivious of danger, and the servants of defendant the Wabash Railway Company and the defendant Sid Briggs, operating said engine and cars, saw or could have seen and observed her position of peril in time to have exercised ordinary care," etc.

It seems to be defendant's contention that the words "and obliviousness" after the word "peril" should appear in the clause just quoted. We do not think this position tenable. Plaintiff alleged she was oblivious to danger, and that defendant saw her in a position of peril. Naturally her position of peril arose at the time she was oblivious to her danger, and was not reached until then. A recent utterance of the Supreme Court on. this point is found in Karte v. Brockman Mfg. Co. (Mo. Sup.) 247 S. W. 417, 423,. where it is said by Woodson, C. J.:

"Counsel for defendant also contends that the petition did not state a cause of action, because it failed to state that deceased was oblivious to the approaching danger, and that plaintiff's instruction A was erroneous, because it did not require the jury to find that the deceased was oblivious to the danger that was approaching him. Many cases are cited in support of the first part of the contention made, and especially the case of Kinlen v. Ry., 216 Mo. 145, 115 S. W. 523, written by the undersigned. I have examined all these cases, and find that none of them sustains the contention made for them, and I know I had no, such idea in my mind when I wrote the Kinlen Case, supra. The existence of such a rulewould require the plaintiff to plead that the deceased was not guilty of contributory negligence, which is not the law of this state. * * *"

It was held in Milward v. Wabash Ry., 207 Mo. App. 345, 356, 232 S. W. 226, 228:

"The petition was not challenged until after verdict, and the defendant's answer alleged' and admits that William Milward in approaching the track' failed to look and listen for the train, and that he walked into a position of peril and danger. In view of this admission, tending to show that the deceased was unaware of his peril at the time and was oblivious to his danger, the question of obliviousness on the part of deceased was not an issue in the case. The admission eliminates the question, and cures the...