McWhirt v. Chicago & A. R. Co.

• Decision Date: 02 June 1916
• Docket Number: No. 17000.,17000.
• Citation: 187 S.W. 830
• Court: Missouri Supreme Court
• Parties: McWHIRT v. CHICAGO & A. R. CO. et al.

187 S.W. 830

McWHIRT v. CHICAGO & A. R. CO. et al.

No. 17000.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Motion to Transfer to Court in Banc Overruled. July 3, 1916.

Appeal from Circuit Court, Ralls County; William T. Ragland, Judge.

Action by William J. McWhirt against the Chicago & Alton Railroad Company, and another. Judgment for plaintiff and defendants appeal. Affirmed.

Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellants. E. S. Gantt, of Mexico, Mo., J. S. Gatson, of Vandalia, Ben. E. Hulse, of Hannibal, and E. L. Alford, of Perry, for respondent.

BROWN, C.

This is a suit for personal injury alleged to have been received from the negligent operation of the engine and cars of the defendant Chicago & Alton Railroad Company, an Illinois corporation operating a railroad through the city of Vandalia in this state as the lessee of the Louisiana & Missouri River Railroad Company, a Missouri corporation which is sued by reason of its alleged liability as lessor. The petition alleges, in substance, that the accident occurred while the plaintiff was crossing the tracks of defendants upon a public road or street in that city called D street, where "he was struck by cars, engine, and tender" being backed west on defendants' tracks, across the street. The particular allegations of negligence upon which the plaintiff depends are: (1) That the crossing is at all times extensively used by persons on foot and in vehicles, and it was the duty of defendants to have their locomotives and cars under full control and a light on the front of cars being moved at night at that place and some person in advance and on the front end of such cars moving over said crossing in order to give travelers crossing the track the necessary warning of the approach of such cars, but that defendants and their agents and servants in violation of their duty carelessly ran a train of cars and locomotive backwards up to and over said crossing, and negligently and carelessly failed to keep a lookout for persons thereon. (2) That the defendants did not, within 80 rods, or within any other distance of said crossing, ring the bell or blow the whistle on said cars and locomotive, and keep the same ringing and blowing until the engine had passed the crossing, but negligently and carelessly and unlawfully failed to give any signal at all of the approach of said train at said crossing, but negligently ran the said cars against said plaintiff. (3) That the defendants carelessly and negligently backed said cars, engine, and tender upon and across said street without having any one in charge thereof, and without having any one in advance of said cars to indicate their approach, and without having any one at the front end of said cars to keep a lookout for pedestrians, who were, as defendants knew, in the habit of crossing the tracks at that point frequently at all hours of the day and night.

D street is the principal business street of the city of Vandalia, and is sometimes called Main street. It is crossed at right angles by the three tracks of the railroad, which run approximately east and west through the city. The main track is on the north side; then comes the passing track and business track in that order. The freight and passenger station is west of D street on the north side of the main track. The passing track connects with the main track by switch, about 600 feet east of D street. The business track leaves the passing track about 100 feet west of the eastern connection of the latter. These tracks are parallel, and so close together that the three occupy a space of only 31 feet. The business houses fronting on the east side of D street extend to within 21 feet of the business track on the south, while those north of the railroad begin about 43 feet from the north rail of the main track, leaving a right of way of about 95 feet exclusively occupied by the railroad company. At between 8 and 9 o'clock in the evening of the day of the accident (May 11, 1910) train No. 130, a freight train, going east, came into Vandalia and stopped at the depot, where it had orders to pick up two cars standing on the business track west of D street. Counting from the east, these were the fourth and fifth cars in a string standing coupled together. The engine was cut off with its tender and, with the head brakeman, went to get these cars. Proceeding east to the switch, which with the switch to the business track was lined by the brakeman, it backed west on the business track across D street, brought out the five cars, put the two west ones onto the main track, and went back with the other three to set them on the business track west of D street, where he had found them. When the front car came to the sidewalk on the east side of D street the plaintiff, who was going north on that walk, had just stepped upon the track, and was struck by it and seriously injured. These movements will be more fully described in the opinion. D street is 64.6 feet wide. Near its west line and about 10 feet north of the main track was an electric bell, which one of defendants' brakemen testified was set so that when the switches were lined for the passing and business tracks, it would ring, and that it was ringing at the time of the accident. Plaintiff's evidence tended to prove that it was not.

Several of plaintiff's witnesses testified without objection on the part of defendants that before the accident a car or cars stood upon the business track just east of the east line of D street, and some of them testified, also without objection, that they were in a building near by and heard a crash as if cars were coupling, and soon afterwards heard cries, and ascertained that the accident had occurred. At the close of plaintiff's evidence defendants moved for an instruction in the nature of a demurrer to the evidence, which was refused. At this point in the trial the defendants filed an affidavit of surprise, and for a continuance, the nature of which is sufficiently shown by the following colloquy between the attorneys at the time:

"Mr. Jones: I would like a few minutes to prepare an affidavit of surprise. This evidence about any cars standing on the track comes as an absolute surprise to us, because nothing intimated that in the petition, and there was at the last trial not even a suggestion of any cars standing upon that track —

"Mr. Gantt: I will state to the court, Mr. Jones says, `That came as a surprise to him, this evidence.' I really think I was the one that was surprised. I did not know about it at the time of the trial —

"Mr. Jones: You admit when you wrote the petition you did not know about that?

"Mr. Gantt: Yes, sir; I did not know that there were any cars standing there."

Affidavits and application for a continuance was then filed and overruled by the court, and exception saved. The defendants then introduced their evidence, after which they renewed their request for peremptory instructions which were again refused. When the evidence was all in, plaintiff abandoned all the charges of negligence contained in the petition except the failure to give statutory or other sufficient signals as the cars approached and entered upon the street crossing, and at his instance the jury were especially instructed that if the agents and servants of the railroad company in charge of the train and cars should elect to give other signals and warnings instead of either ringing the bell or sounding the whistle, they might do so, and omit the statutory signals, provided such other signals were sufficient to give notice to a careful and observant person on or near the crossing that a train of cars was approaching it, and that there was no evidence of any other acts of negligence charged in the petition. It instructed, at defendants' instance, and in many forms, upon the subject of contributory negligence, but refused to instruct that section 3078 of the Revised Statutes 1909 is not applicable to the defendant Louisiana & Missouri River Railroad Company, and that in its application to that company it is unconstitutional and void. There was a verdict and judgment for $10,000 against both defendants.

1. For the fourth time the defendant corporations are in this court, asking us to construe the lease dated August 1, 1870, by which the defendant Louisiana & Missouri River Railroad Company leased this railroad property to the predecessor of its codefendant under the very circumstances out of which this suit has grown, and to declare the act of March 24, 1870 (Laws 1870, p. 90), unconstitutional in so far as it attempts to make the lessor liable for the negligence of the lessee. Fleming v. Railroad, 263 Mo 180, 172 S. W. 355; Brown v. Railroad, 256 Mo. 522, 165 S. W. 1060; Markey v. Railroad, 185 Mo. 348, 84 S. W. 61. Long before the first of these cases came before us, the most of the questions involved had necessarily been construed and determined in Smith v. Pacific R. R., 61 Mo. 17 (1875), and the last in the category which the ingenuity of appellants has suggested was expressly determined against them in the Fleming Case. We are still satisfied with our decision in that case, and hold that the Louisiana & Missouri River Company is liable with the Chicago & Alton Railroad Company in cases of this character.

2. Nor are we impressed by the force of the defendants' contention that the court erred in overruling the application for continuance made at the close of plaintiff's evidence, on the ground of surprise by plaintiff's testimony to the effect that before the accident occurred cars were standing upon the track on both sides of the crossing, and that some men in a building near by heard a noise as of the impact of cars, and cries or calls at the place of the accident, which occurred at that time. The affidavit for continuance showed that the cause had been tried upon the same petition in Audrain county; that it was then tried upon the theory that the plaintiff...