Lobach v. Kansas City Southern Railway Company

• Citation: 158 S.W. 397,172 Mo.App. 278
• Parties: ELLA L. LOBACH, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Decision Date: 02 June 1913
• Court: Kansas Court of Appeals

158 S.W. 397

172 Mo.App. 278

ELLA L. LOBACH, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 2, 1913

Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

Reversed and remanded.

Cyrus Crane and George J. Mersereau for appellant.

(1) On the entire evidence, plaintiff is not entitled to recover and the humanitarian doctrine is not applicable to this case. Railroad v. Backs, 50 S. E. (Va.) 257; Grout v Railroad, 125 Mo.App. 526; Wilkinson v Railroad, 124 S.W. 546; Davis v. Railroad, 134 S.W. 718; Murphy v. Railroad, 228 Mo. 56; Trigg v. Railroad, 215 Mo. 521; Ayres v. Railroad, 190 Mo. 286. (2) The court erred in giving instructions numbered II and III on behalf and in refusing instructions numbered VI, VII and VIII requested by defendant. Frye v Railroad, 200 Mo. 401, 402.

A. N. Adams and Scarritt, Scarritt, Jones & Miller for respondent.

(1) Where one, unconscious of his peril, exposes himself to danger, at a place where those controlling a dangerous instrumentality have no reason to expect a clear track but have reason to expect the presence of persons on the track, then it is their duty to exercise ordinary care to discover him and to prevent injuring him. Werner v. Railroad, 81 Mo. 368; Isabel v. Railroad, 60 Mo. 475; Personal Injuries on Railroad, White 1031, vol. 11, p. 1521; Fearons v. Railroad, 180 Mo. 208; Eppstein v. Railroad, 197 Mo. 720; Everett v. Railroad, 214 Mo. 54; Cole v. Railroad, 121 Mo.App. 612; Rodgers v. Transit Co., 117 Mo.App. 678; Murphy v. Railroad, 228 Mo. 56; Guenther v. Railroad, 108 Mo. 21. (2) The tower man who operated the derailing switch was in control of the train as to that part of the track between the tower and the derailing switch and the defendant is liable for his negligence. Sec. 5425, R. S. 1909; Rinard v. Railroad, 164 Mo. 270; Rine v. Railroad, 100 Mo. 228; Steffe v. Railroad, 156 Mass. 264. (3) There was abundant evidence to submit the case to the jury, and the verdict was for the right party. Anderson v. Railroad, 123 N.W. 282, 18 N.D. 462; Blanitt v. Railroad, 72 Mo. 583.

OPINION

JOHNSON, J.

Plaintiff, the widow of Rudolph Lobach, deceased, sued to recover damages for the death of her husband which she alleges was caused by negligence of defendant. The cause of action pleaded in the petition and submitted to the jury is an alleged breach of the humanitarian rule. The jury returned a verdict for plaintiff in the sum of five thousand dollars and, after its motions for a new trial and in arrest of judgment were overruled, defendant appealed.

In the morning of August 16, 1910, at or near four o'clock, Lobach was run over by a freight train on defendant's railroad and received injuries from which he died three hours later. The place of the injury was near the crossing of defendant's railroad and the tracks of the Independence line of the Metropolitan Street Railway Company. This crossing is in the suburbs of Kansas City near Sheffield. The street car tracks run east and west and the railroad north and south. A watchman is maintained by defendant at this crossing and his station is in a switch tower which is about thirty feet south of the street car tracks and ten feet west of defendant's track. There is a derailing switch at a point about 400 feet south of the crossing and this switch is kept open except on occasions when the watchman closes it to allow northbound trains to pass over the crossing. When a train approaches from the south and whistles for the crossing the watchman answers by semaphore signals which are given by moving a lever in the tower. If the signal shows a clear crossing the train comes on and the watchman closes the derailing switch but if the opposite signal is given the engineer knows that the track is not clear and stops his locomotive south of the derailing switch which is left open until the crossing is clear. About 1600 feet south of the crossing the railroad crosses a stream and a short distance beyond that, Fifteenth street. There are factories and pleasure resorts along the road and the evidence shows that pedestrians were in the habit of using the railroad between the crossing of the street railway and Fifteenth street in a manner to impose a duty on the operators of trains to be on the lookout for pedestrians at all hours of the day or night. Coming from the south the railroad ran due north to a point about fifty feet north of the derailing switch, thence curved very slightly towards a course a few points west of north.

About an hour before his injury Lobach came to the tower and remained there fifteen or twenty minutes talking to the watchman and another visitor. He was intoxicated but was able to walk and talk coherently. When he left the watchman assisted him down the stairway and tried to induce him to take a street car but he decided to walk home and then started south on the railroad track. The watchman reminded him that he was going the wrong way and he replied that he knew where he was going and kept on southward, disappearing in the darkness. The watchman, having nothing to do at his post for sometime, went to a nearby highway to intercept some farmer going to market with peaches and did not return to the tower until a few minutes before the arrival of a northbound freight train. On reaching his post he looked in the direction Lobach had gone but saw nothing of him. He could not see as far south as the derailing switch until the place came under the glare of the electric headlight of the locomotive. He states he looked along the track then and did not see anyone. He threw the lever to signal for a clear track, closed the derailing switch and the train came on at very slow speed (not over three or four miles per hour), and stopped on the crossing with the caboose standing a short distance south of the switch. Some stockmen alighted from the caboose and the train went on. The stockmen while walking along the track towards the crossing discovered Lobach lying between the rails fatally injured. He was about sixty feet north of the derailing switch and there were marks along the track indicating that he had been rolled and dragged between the rails a distance of, perhaps, thirty feet. The engineer and firemen, who were introduced as witnesses by defendant, testified that from the bridge north to the crossing, the train had run at three or four miles per hour, that they kept a constant lookout ahead and saw no one on or near the track and did not know until late that afternoon that the train had run over a man.

There is evidence introduced by defendant to the effect that parts of the locomotive were not over four or five inches above the top of the rails and that the ash pan was only six or seven inches above the surface between the rails. Counsel for defendant argue that the unfortunate man would have been crushed to a...