McCullough v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 02 December 1935
• Docket Number: No. 18085.,18085.
• Court: Missouri Court of Appeals
• Parties: McCULLOUGH v. CHICAGO, R. I. & P. RY. CO.

88 S.W.2d 400

McCULLOUGH v. CHICAGO, R. I. & P. RY. CO.

No. 18085.

Kansas City Court of Appeals. Missouri.

December 2, 1935.

Appeal from Circuit Court, Livingston County; Ira D. Beals, Judge.

"Not to be published in State Reports."

Action by Frank McCullough against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Luther Burns, of Milan, Kitt & Kitt, of Chillicothe, and Conrad, Durham & Lee and Hale Houts, all of Kansas City, for appellant.

Davis & Davis, of Chillicothe, and L. A. Warden, of Trenton, for respondent.

CAMPBELL, Commissioner.

Action for damages for personal injuries caused by defendant's train No. 12 striking the plaintiff while he was walking along defendant's track in the city of Trenton. Judgment was for the plaintiff in the sum of $1,500. The defendant has appealed.

The cause was submitted solely upon the humanitarian doctrine. The defendant contends that the court erred in refusing to direct verdict in its favor at the close of all the evidence for the reason that the petition did not charge negligence under the humanitarian rule. The petition alleged that a path extended from plaintiff's home to the center of defendant's railroad track; thence southward between the rails of the track to defendant's station, a distance of about one-fourth of a mile; that the path had been continuously used for many years by many pedestrians, which fact was well known to the defendant; that defendant's employees in charge of its train No. 12, on the evening of February 6, 1932, "knew, or by the exercise of ordinary care ought to have known that the plaintiff or the public in general might be on and along said tracks, in the use of the pathway or roadway, above referred to, and defendant's employees in charge of said train knew or should have known * * * the location of said pathway or roadway, and the presence of this plaintiff thereon * * *"; that on the night of February 6, 1932, plaintiff walked from defendant's station northward upon said path approximately a distance of one-fourth mile; that during all that time he was in the "plain unobstructed view of the defendant's employees in charge" of defendant's train No. 12; that it was the duty of defendant's said employees "to keep a lookout for pedestrians, including this plaintiff, and if necessary ring the bell and sound the whistle, or slacken the speed and if necessary stop the train to avoid injuring plaintiff or anyone using said pathway"; that the defendant's said employees "without giving any signal or warning, and without stopping the train if necessary, as was their duty, negligently operated said train upon and against this plaintiff, and that said defendant, its servants, agents and employees in charge of said train negligently failed to perform said duties, and failed to exercise reasonable care and negligently failed to watch and keep a lookout for persons, including this plaintiff, walking upon said pathway and upon said track, but then and there negligently operated said engine and train at a high, excessive and unlawful rate of speed, and without keeping a lookout as required by law, and failed to exercise reasonable and ordinary care, and by reason of the negligence of defendant herein said locomotive engine and passenger train struck this plaintiff while he was in the exercise of due care, knocked him down * * *"; that his injuries were due to the negligence of defendant; and "that if defendant had used due care and diligence in looking out for persons on said track and in operating said train at a reasonable rate of speed as provided by law or given some signal or warning, or if necessary stopped said train, they could could have seen plaintiff in a place of danger and could have have avoided striking and injuring plaintiff."

Manifestly the petition did not in plain terms allege ultimate facts sufficient to bring the case under the humanitarian rule. Wilson v. Wells, 321 Mo. 929, 13 S.W.(2d) 541.

There is no direct charge that plaintiff was in imminent peril, or that defendant's employees saw or could have seen plaintiff in a place of danger in time, by the exercise of ordinary care, to have prevented the injury. However, facts were stated showing that defendant's employees were under duty to look out for the plaintiff that during all the time plaintiff was upon the track he was in plain view of the defendant's employees; that if said employees had exercised due care in looking for persons on the track, they could have seen plaintiff in a position of danger and could have avoided striking him. These allegations, after verdict, sufficiently charged negligence under the humanitarian doctrine. Phillips v. East St. Louis & S. Ry. Co. (Mo. Sup.) 226 S.W. 863; Stevens v. Westport Laundry Co., 224 Mo.App. 955, 25 S.W. (2d) 491, 497.

Moreover, in the trial evidence was received, without objection, tending to prove a case of negligence under the humanitarian rule. Both parties, by conduct, told the trial judge that the cause of action was one based upon that rule. The...