McCray v. Missouri, K. & T. Ry. Co.

• Decision Date: 03 October 1928
• Docket Number: 26794
• Parties: Homer H. McCray, Appellant, v. Missouri-Kansas & Texas Railroad Company
• Court: Missouri Supreme Court

10 S.W.2d 936

321 Mo. 17

Homer H. McCray, Appellant, v. Missouri-Kansas & Texas Railroad Company

No. 26794

Supreme Court of Missouri

October 3, 1928

Motion for Rehearing Overruled November 16, 1928.

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Reversed and remanded.

Atwood Wickersham, Hill & Chilcott for appellant.

The trial court erred in forcing the plaintiff to a nonsuit and in failing to set the same aside on motion properly made. The evidence showed defendant grossly negligent in maintaining a dangerous crossing in a public street of a populated city. (1) Plaintiff's injury was not in conflict with physical facts, but in perfect accord with them. The evidence clearly justified a submission of the cause to the jury for determination. Kibble v. Q. O. & K. C. Railroad, 285 Mo. 618; Rockwell v. Stamping Co., 210 Mo.App. 173; Benjamin v. Railway Co., 245 Mo. 598; Banks v Wabash, 40 Mo.App. 458; Reuter v. Terminal Railroad, 261 S.W. 716; Woodson v. Street Ry. Co., 224 Mo. 685; Zeis v. Brewing Assn., 205 Mo. 651; Thompson v. City of Slater, 197 Mo.App. 260; Washburn v. Laclede Gas Co., 202 Mo.App. 116; Harrison v. Light Co., 195 Mo. 606; Hoepper v. Southern Hotel Co., 142 Mo. 378; Buckner v. Horse & Mule Co., 221 Mo. 700; Brady v. Railroad, 206 Mo. 537; Dean v. Railroad, 199 Mo. 411; Benton v. St. Louis, 248 Mo. 98; McClanahan v. St. L. & S. F. Railroad Co., 147 Mo.App. 410; Montague v. Ry. Co., 193 S.W. 935; Phippin v. Mo. Pac. Ry. Co., 196 Mo. 343; Warnke v. Rope Co., 186 Mo.App. 41; Berger v. C. & A. Ry. Co., 97 Mo.App. 127; Modrell v. Dunham, 187 S.W. 563; Allen v. Street Railway, 188 Mo.App. 193; Lang v. Mo. Pac. Ry. Co., 115 Mo.App. 497; Berry v. Street Ry. Co., 156 Mo.App. 560; Barnett v. Met. St. Ry. Co., 138 Mo.App. 195; Holland v. Railway Co., 157 Mo.App. 476; Kleiber v. People's Ry. Co., 107 Mo. 240; Hull v. Transfer Co., 135 Mo.App. 119; Underwood v. Ry. Co., 190 Mo.App. 407; Kempa v. Joseph, 178 Mo.App. 292; Jewell v. Mfg. Co., 143 Mo.App. 200. (2) The fall of plaintiff beneath the train was the direct result of the negligence of defendant in maintaining a defective crossing. It was not necessary that defendant should have anticipated the happening of this very accident to make it liable. Hogan v. Fleming, 297 S.W. 409; Smith v. St. Joseph L., H. & P. Co., 276 S.W. 609; Buckner v. Horse & Mule Co., 221 Mo. 701; Combs v. Standard Oil Co., 296 S.W. 819; Benton v. St. Louis, 248 Mo. 98; Reuter v. Terminal Ry. Co., 261 S.W. 716.

Cooper & Neel, Carl S. Hoffman and Whitson G. Rogers for respondent.

The court correctly sustained the demurrer to the evidence, since the injury to plaintiff was not the natural and probable consequence of and did not impose any legal liability on defendant because of its alleged negligent act or acts. Washburn v. Gas Light Co., 202 Mo.App. 102; Benton v. St. Louis, 248 Mo. 98; State ex rel. v. Ellison, 271 Mo. 463; Hunter v. Busy Bee Candy Co., 307 Mo. 671; American Brewing Assn. v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 623; Wilt v. Coughlin, 176 Mo.App. 275; Chandler v. Gas Co., 174 Mo. 321; Zasemowich v. Mfg. Co., 213 S.W. 799; Christy v. Hughes, 24 Mo.App. 275; Teis v. Mining Co., 158 F. 260; DeMoss v. Rys. Co., 296 Mo. 526; Wilson v. M., K. & T. Railroad Co., 129 Mo.App. 658; Foley v. McMahon, 114 Mo.App. 442; Keele v. Ry. Co., 258 Mo. 62; St. L. & S. F. Ry. Co. v. Ferrell, 105 S.W. 263; Donald v. Coal Co., 103 S. E. (W. Va.) 55.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This is a suit in which the sum of $ 25,000 is asked as damages on account of personal injuries sustained by plaintiff, appellant, and alleged to be the result of defendant's negligence. In its general outline plaintiff's claim is, that on the night of July 25, 1923, he was walking east on Grand Avenue, a public street extending east and west, in the city of Parsons, Kansas, crossed from north to south by several tracks of defendant's railway; that in walking over the fifth track, from the west, his left foot caught against a raised plank inside the east rail of said fifth track, causing him to stumble over said east rail and to set his right foot into a depression on the east side of the east rail of said fifth track, whereby he was caused to fall forward toward and upon the west rail of the sixth track, on which, at the time, one of defendant's passenger trains was moving southward, so that his left arm near the wrist was caught on the rail and run over by the wheels of said train. Amputation of his arm below the elbow was performed the same night.

The negligence alleged was the maintenance by defendant of the crossing in an uneven, unsafe and dangerous condition, due to the existence of humps and depressions therein. At the close of the plaintiff's evidence the court gave the peremptory instruction offered by defendant, whereupon plaintiff took an involuntary nonsuit with leave. His appeal is from the order denying his motion to set aside the nonsuit. The court in giving the peremptory instruction stated the grounds of his ruling, and the respective opposing contentions made on appeal take the court's statement as one defining the issue emphasized by counsel for both sides. The case is characterized by counsel in their briefs as "a one-point case." The statement of the court was a voluntary act, and one not required to be made, but since it covers and defines the issue treated in the briefs we set it out:

"The question for decision is whether the manner in which plaintiff testified that he fell on the tracks, and got his hand over the rail of the tracks, was a natural and probable consequence of the unsafe condition of the tracks. As shown in the evidence, when the plaintiff stumbled he was eight and one-half feet away from track number 6, and couldn't have got his hand over said track naturally in the course of the fall, but of course he could have put his hand over the rail. I do not intend to intimate that he did so, or that I think he did so, but he himself says that he endeavored to stretch his arms out at full length in order to reach and support himself against the side of the cars moving on track number 6. Accepting his statement as true, the act was so unnatural and improbable as not to be a legal consequence of defendant's wrongful acts. For that reason I have reached the conclusion that the demurrer to the evidence should be sustained."

The plaintiff at the time of his injury was twenty-seven years of age, and in the employ of defendant railway company in one of its shops at Parsons. He was a married man, and testified that on the afternoon of the day in question he quit work, for the day, at about four o'clock, and went to his home, and remained there until after the evening meal and at about eight o'clock went to a colored church where a revival meeting had been going on, distant about two blocks from his home; that he remained there a short time, and left -- did not start to go directly home, but intended to see another man; that about 8:30 P. M. he was walking east on Grand Avenue approaching the crossing of defendant's tracks. There were six or more tracks at this crossing. There was no sidewalk on the north side of Grand Avenue. The plaintiff walked eastward upon the sidewalk on the south side, until he reached the west side of the crossing. The sidewalk did not extend over the crossing, and pedestrians passed over the crossing along the general course used also for vehicles. As he came to the first track, where the sidewalk ended, it appears from his cross-examination, he stumbled slightly. He turned more into the center of the street. There was no street light or crossing light burning, and he testified that it was dark at the time. He walked eastward over the crossing, using the main or middle part of the street. Testimony of witnesses other than the plaintiff himself was that the north end of the plank inside of the east rail of the fifth track from the west, was raised, or "cupped up," about three inches or more above the level of the general surface of the crossing. There was also testimony other than that of plaintiff himself that opposite to this cupped-up place near to and on the east side of this fifth rail, there was a depression of several inches below the surrounding surface, and that the area of this depression, as one of the witnesses put it, was about the "size of a tub." The plaintiff testified that as he approached the crossing, a freight train went north on one of the west tracks, and that immediately afterward, and as he walked eastward over the crossing, a passenger train was moving south upon the sixth track, at a speed of five or six miles an hour, and picking up speed. Describing in direct examination what happened, as he was passing over the fifth track, he said: "I stumbled over a plank with my left foot, and threw my right foot forward to catch myself and stepped in a vacancy, a hole, and lost my balance and went directly forward under the train. My arms went across the track." On cross-examination in response to a question he said: "When I stumbled I tried to catch myself -- threw my hands up trying to hit the car to throw myself back, and missed the car and fell under the car." The plaintiff said the distance from the east rail of the fifth track to the west rail of the sixth track was about eight and one-half feet. One of his witnesses said the intervening distance at that place was seven or eight feet. Tracks 5 and 6 are not parallel at that place, and come together at a point about fifty feet south. Plaintiff said his own height was five feet nine inches. Plaintiff said both his arms went across the rail; that he fell behind one pair of trucks of the passing car and the wheel of the second truck caught his...