Maddux v. Gardner

• Decision Date: 03 December 1945
• Citation: 192 S.W.2d 14,239 Mo.App. 289
• Parties: Genie Maddux v. Henry A. Gardner, Trustee, and B. A. Marble
• Court: Kansas Court of Appeals

192 S.W.2d 14

239 Mo.App. 289

Genie Maddux v. Henry A. Gardner, Trustee, and B. A. Marble

Court of Appeals of Missouri, Kansas City

December 3, 1945

Appeal from Circuit Court of Boone County; Hon. W. M. Dinwiddie Judge.

Reversed and remanded.

Charles M. Miller for appellants and defendants.

(1) The petition showed upon its face the suit as to Marble, was not instituted or begun within one year after the alleged cause of action occurred. Sec. 3650, R. S. Mo. 1939; Gross v Butte Elect. Ry. Co., 217 F. 422; Jensen v. Safeway Stores, 24 F.Supp 585; Adams Exp. Co. v. Met. St Ry. Co., 126 Mo.App. 127. (2) The alleged action against Marble was barred by Sec. 3650, R. S. Mo. 1939, the suit not having been instituted or begun against Marble, within one year after the accrual of the alleged cause of action. Sec. 3650, R. S. Mo. 1939; Gross v. Butte Elect. Ry. Co., 217 F. 422; Jensen v. Safeway Stores, 24 F.Supp. 585; Adams Exp. Co. v. Met. St. Ry. Co., 126 Mo.App. 127. (a) Neither the petition nor the evidence disclosed any cause of action against Marble or a submissible case to a jury, as to him. Maddux' negligence also barred recovery. Neill v. Alton Railroad (Mo. App.), 113 S.W.2d 1073, 1075; Shepard v. Rock Island Rd., 335 Mo. 606, 72 S.W.2d 985; Tannehill v. Railroad, 279 Mo. 158, 213 S.W. 818, 822. (3) Gardner, Trustee, cannot be held liable for alleged negligence of the Alton Railroad Company or an accident, prior to his appointment as Trustee. Chamberlain v. Railway, 71 F. 636. (a) Neither the petition nor the evidence, disclosed any cause of action against Gardner, Trustee, or a submissible case to a jury as to him. Maddux' negligence also barred recovery. Neill v. Alton Railroad (Mo. App.), 113 S.W.2d 1073, 1075; Shepard v. Rock Island R. Co., 335 Mo. 606, 72 S.W.2d 985; Tannehill v. Railroad, 279 Mo. 158, 213 S.W. 818, 822

George A. Spencer for respondent and plaintiff.

(1) Defendant's demurrer and peremptory instruction were properly overruled. Jensen v. Safeway Stores, 24 F.Supp. 585; Bagenas v. Southern Pac. Co., 180 F. 887; Buel v. St. Louis Transfer Co., 45 Mo. 562; Parry v. Woodson, 33 Mo. 347; Gross v. Butte Elec. Ry. Co., 217 F. 422; Combs v. Smith Receiver of the Burlington & S.W. R. R. Co., 78 Mo. 32. (2) The Circuit Court properly overruled defendant Gardner's peremptory instruction. U.S. Code Bankruptcy Act, Title 11, Section 205, Sub. Sec. J; Rodabaugh v. Denny and Hayden, Trustees of the Erie Railroad, 24 F.Supp. 1011; Liquid Carbonic Corp. v. Erie Railroad Co., 14 N.Y.S. (2d) 168. (3) Deceased's contributory negligence cannot bar recovery in this case as contended by appellants. Ruenzi v. Payne, 231 S.W. 294; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633; Nichols v. Chicago, B. & Q. R. Co., 188 S.W.2d 511. (4) The fact that B. A. Marble was the engineer is established by the record, admissions in open court by Marble's attorney, may be inferred from the fact that he was in court and present at the trial and was not called to testify, and the cause was tried by both parties on the theory and as though he was a proper party. Sullivan v. Gideon, 271 S.W. 983; Casey v. Transit Co., 205 Mo. 725. (5) It was the duty of the engine crew to be on the lookout for persons and to act upon the first appearance of danger. Dyer v. Kansas City Southern, 25 S.W.2d 508, l. c. 511; Krause v. Pitcaern, 167 S.W.2d 74; Bollinger v. San Francisco Ry. Co., 334 Mo. 720, 67 S.W.2d 985. (6) Plaintiff made a submissible case under the humanitarian or last chance doctrine. Shelton v. Thompson, 185 S.W.2d 777; Woods v. Kurn, 183 S.W.2d 852, l. c. 856; Gann v. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Robinson v. Chicago, Great Western Ry. Co., 66 S.W.2d 180. (7) The court takes judicial knowledge of the slack between cars; that automobiles and trains can be stopped or slackened within certain limits; that the court may indulge in the inference that the failure to call the fireman or engineer that their testimony would be unfavorable to appellants, and that the jury should pass on the questions as to whether the engineer saw and appreciated plaintiff's peril and acted as promptly as he should. Woods v. Kurn, 183 S.W.2d 852; Laycock v. United Rys. Co. of St. Louis, 227 S.W. 883; Downs v. United Rys. Co., 184 S.W. 995; Sullivan v. Gideon and N. I. R. Co., 271 S.W. 983; Smith v. K. C. Pub. Service Co, 43 S.W.2d 553.

OPINION

Bland, P. J.

This is an action for wrongful death, prosecuted against the trustee of the Chicago & Alton Railroad Company and one Marble, alleged to have been the engineer on the train that ran over the deceased. There was a verdict and judgment in favor of plaintiff in the sum of $ 2500. Defendants have appealed.

Plaintiff is the widow of Ara T. Maddux, deceased, who was struck by a train while he was crossing Allen Street, at the Alton Railroad tracks in Centralia. The collision occurred about 2:00 P. M., on March 19, 1942, on a clear day. Deceased was 68 years of age. Allen Street extends north and south. The railroad tracks cross it at right angles.

Plaintiff's witness, Vernon, testified that he was standing in the depot of the railroad station a short distace east of the crossing at the time of the casualty; that the train approached from the west and that the railroad tracks were straight for a quarter of a mile west of the point of the collision; that deceased proceeded on the west side of Allen Street going south across the tracks, which consist of a main line and two side tracks, the main line being the south track; that deceased "habitually walked slowly. He had a habit of walking with his head down a little to one side, he was looking down. He would have his head cocked to the right looking a little to the left"; that deceased was walking in his usual manner at the time he approached the tracks and when he was struck; that the train was approaching at a rate of speed of fifteen or twenty miles per hour; that deceased had gotten almost clear of the train at the time of the casualty; that he was struck by the pilot beam of the engine, which was nine or ten feet long: "I don't think it was more than 4 to 6 inches that hit him"; that deceased was struck on the arm; that up to the time that he saw deceased fall he though that deceased had cleared the track; that it would not have taken another step for deecased to have been in the clear; that the train did not start to slow down until immediately after deceased was struck.

There was evidence that coming into town the train crossed two or three other streets; that it whistled before entering the city and upon the street crossings; that when leaving one crossing it would whistle for the next one; that the block immediately west of Allen Street is 260 to 270 feet long and that it whistled when it reached a point in the middle of this block and continued to whistle until deceased was struck.

The witness, Vernon, testified that he heard the train whistle four or five times "up the track". The witness further testified that there was a freight train standing on the side track about 400 or 500 feet east of the crossing, headed west; that it was waiting to pull out as soon as the westbound train went by.

Plaintiff's witness, Hunt, testified that he was the agent-operator for the Alton Railroad at Centralia; that he was at a point west of the station seven to ten feet east of Allen Street and about sixty feet from the point of the collision; that he saw deceased approaching the place of the collision; that deceased was looking down at the sidewalk and perhaps several feet ahead of him until "a second before he was hit. Then he turned his head toward the engine of the approaching train to the west"; that the train sounded its whistle as it approached the city; that when the train first came into view it was proceeding at the rate of about twenty-five miles per hour; that the train reduced its speed and was going at the rate of fifteen or twenty miles per hour at the time deceased was struck; that the train gave four whistles for each street crossing; and when it was a half block from where it struck deceased the engineer "gave an unusual blast for him" (deceased). On cross-examination he stated that this whistle was the regular whistle for the crossing; that he could not say whether the engineer gave an unsual whistle for the deceased; that what he heard was the regular crossing whistle; that he did not hear the train standing on the side track headed toward the west make any noise; that he observed deceased approaching the tracks; that when he first saw him he did not think that he would go over the tracks without stopping; that when deceased was 10 or 12 feet from the north rail of the main line, upon which the train was approaching, the witness thought that deceased was going on across the tracks. Later he testified that he did not know that deceased was going upon the main line track until the latter "approached the north rail close to the main line"; that deceased could have stopped in a fraction of a second; that he judged that the train was composed of forty cars; that freight trains cannot be stopped as quickly as passenger trains; that the engineer was on the south or right-hand side of the engine.

Plaintiff testified that deceased was alive when she arrived at the scene of the collision; that he was taken to Mexico in an ambulance; that shortly after he was put in the ambulance she asked him "why he stepped before a moving train", and he replied, "I was looking at the other one. I didn't know this one was on the track".

Defendant's witness, Gerrard, testified that he saw deceased lying on the ground; that he went over to where he was and he heard him say that he "thought he was far enough over to keep from being hit".

The undisputed evidence shows...