McWilliams v. Missouri Pacific Ry. Co.

• Decision Date: 02 June 1913
• Citation: 157 S.W. 1001,172 Mo.App. 318
• Parties: DAVID T. McWILLIAMS, Appellant, v. MISSOURI PACIFIC RY. CO., Respondent
• Court: Kansas Court of Appeals

157 S.W. 1001

172 Mo.App. 318

DAVID T. McWILLIAMS, Appellant, v. MISSOURI PACIFIC RY. CO., Respondent

Court of Appeals of Missouri, Kansas City

June 2, 1913

Appeal from Jackson Circuit Court.--Hon. Jas. E. Goodrich, Judge.

Judgment affirmed.

Henry J. Latshaw for appellant.

The place where plaintiff was injured being a public street in Kansas City, Missouri, plaintiff was not a trespasser by being on defendant's tracks on said street and it was the duty of defendant's servants to be on the look out for pedestrians and vehicles thereon at the time plaintiff was injured, and it was not incumbent upon plaintiff to prove the fact that said street was in the habit of being used by the public at or about the hour plaintiff was injured. Riggs v. Railroad, 216 Mo. 318, 319; Lang v Railroad, 115 Mo.App. 498; Scullin v. Railroad, 184 Mo. 695; Everett v. Railroad, 214 Mo. 89 and 92; Mitchell v. Railroad, 122 Mo.App. 50; Moore v Railroad, 157 Mo.App. 53; Irving v. Railroad, 156 Mo.App. 667; Byars v. Railroad, 141 S.W. 926; Buckry-Ellis v. Railroad, 138 S.W. 912; Stotler v Railroad, 200 Mo. 107.

Martin L. Clardy and Edward J. White for respondent.

(1) There is nothing but the record proper before the court, as the plaintiff did not file his bill of exceptions in time to have the same considered in the trial court, the time to file the bill of exceptions having expired before the appeal was filed, as shown by the record. Plaintiff was given until on or before the first day of September, 1911, to file his bill of exceptions and the bill of exceptions was not presented or signed until the 23rd day of January, 1912. State ex rel. v. Duncan, 130 Mo.App. 311; McKinney v. Lumber Co., 131 Mo.App. 425; State v. Cutberth, 203 Mo. 579; Hardware Co. v. Weeks, 135 Mo.App. 20; Doolittle v. Ward, 135 Mo.App. 616; State v. Taylor, 134 Mo.App. 430. (2) The reason assigned for the ruling of the court below is of no value on appeal, so long as the end reached is right and although the grounds assigned by the trial court for sustaining a motion for a new trial did not justify the order, yet if the record shows that there was error made in the course of the trial not so specified that did justify it, the action of the court in granting a new trial will be upheld on appeal. Chandlar v. Transit Co., 213 Mo. 244; Green v. Railway Assn., 211 Mo. 18; Taylor v. Railroad, 130 Mo.App. 582; Smart v. Kansas City, 208 Mo. 162; Fink v. McCue, 123 Mo.App. 313; Parker v. Britton, 133 Mo.App. 270; Bank v. Rogers, 123 Mo.App. 569; Hunt v. Street Railway, 126 Mo.App. 79. (3) The plaintiff having been struck in the defendant's private railroad yard and at a point where the track was not subject to user, and not having been discovered until the car struck him, the humanitarian doctrine does not apply to this case. Dyrcz v. Railroad, 141 S.W. 865; Frye v. Railroad, 200 Mo. 377; White v. Railroad, 141 S.W. 436; McGee v. Railroad, 153 Mo.App. 492; Paul v. Railroad, 152 Mo.App. 577; Abbott v. Railroad, 121 Mo.App. 585; Mockowk v. Railroad, 196 Mo. 557; Green v. Railroad, 192 Mo. 131; Lamm v. Railroad, 216 Mo. 580; Schaub v. Railroad, 133 Mo.App. 444; Gunn v. Railroad, 141 Mo.App. 315; Ross v. Railroad, 113 Mo.App. 604. (4) The reason assigned by the trial court being that the verdict is against the evidence, this court will not review the discretion of the trial court in granting a new trial, as this is a matter within the sound discretion of the trial court, under the statute. Rodan v. Transit Co., 207 Mo. 392; Carnes v. Wynn, 126 Mo.App. 712; Fink v. McCue, 123 Mo.App. 313; Crow v. Crow, 124 Mo.App. 120.

TRIMBLE, J. Ellison, P. J. and Johnson, J., concur.

OPINION

TRIMBLE, J.

--Suit to recover damages for injuries received on defendant's tracks "where or near where Gillis street is crossed by First street" in Kansas City, Missouri. At the point in question defendant has four tracks running east and west, two main tracks in the center and an outer switch track on each side of the main tracks. These are parallel to and about one hundred and fifty rods south of the Missouri river. Gillis street extends from the river bank south across defendant's tracks and on into the city. The city dump was on the river bank at the foot of Gillis street, and a building belonging to the gas company was located north of the railroad tracks and close to Gillis street and also a tar roofing plant. A fence had been built across Gillis street about eight feet north of and parallel to the north track, but a gate was in this fence through which went a wagon road. Gillis street was not paved, and had no sidewalks; nor were there any residences north of the track in that vicinity. On the tracks in Gillis street was a crossing made of planks about twelve feet, or possibly more, in length; and the usual sign stood there which read "Railroad crossing. Lookout for the cars." This crossing was used mostly by persons going to the dump at the foot of the street, teams being driven across the tracks at this point hauling dirt and refuse, also possibly oil and pipe for the gas company. The crossing was but little used at night though there was testimony that occasionally some persons did go across there after dark.

The evening in question was dry and clear. Plaintiff claims that he was walking south on Gillis street and started across defendant's tracks when an eastbound freight train on the south main track was passing and impeded his progress. The engine and one or two cars had passed Gillis street when plaintiff reached the track. He looked east and west to see if any train was approaching on the north main track and, seeing none, he stepped upon the north main track waiting for the freight train to pass and let him continue on his way. Before it got by, however, one of defendant's switch engines backed up from the east over the north track pushing behind it a train of cars, the front or west one of which struck plaintiff. He testified that he was not aware of his peril until just as the car was on the point of striking him; that being unable to get out of the way he caught hold of the car (which was going four or five miles an hour) to save himself, and was dragged about fifty feet when his right foot caught in some way and his leg was run over and mangled just above the ankle and again crushed several inches above that, all of which necessitated amputation. His arm, shoulder and side were also bruised.

There was no headlight on the rear of the train as it backed west on this occasion, except that the switch foreman was on the north side of the rear car (which was a Union Tank Line oil car), and had in his hand an ordinary railroad lantern. No signal whatever was given of the movement of the train as it approached Gillis street. This switch foreman on the rear car testified that he did not see plaintiff and did not know he had been struck until sometime afterward. The plaintiff testified that he saw this man so plainly by the light of an arc lamp hanging 100 feet south of the crossing as to be able to recognize him afterward.

The case went to the jury, under the second count of the petition, on the humanitarian theory, and the jury were told, by proper instructions, that, if defendant's agents had reason to expect people at said time and place and either saw or could have seen the plaintiff in peril and failed to exercise ordinary care to avoid striking him, then defendant was guilty of negligence and plaintiff was entitled to recover. The defense in its instructions submitted two theories, first, that plaintiff was not standing on the track when struck, but was endeavoring to climb on one of defendant's cars at its side in order to ride up town, and fell with his foot under the wheel, and, if so, he could not recover; second, that he was struck and injured at a point west of Gillis street (which would be at a place other than the crossing) and, if so, he could not recover.

The jury found for plaintiff and returned a verdict for $ 10,000, and judgment for that amount was rendered. In due time defendant filed a motion for new trial. Plaintiff thereupon entered a written remittitur of $ 2500 and all interest to date of remittitur and the court set aside the $ 10,000 judgment and, acting on the remittitur, rendered judgment for $ 7500 to bear interest from the date of the last judgment. The court then took up the motion for new trial and after a hearing thereon entered an order sustaining the same "for the reason that the verdict is against the evidence as to the plaintiff being at the time of his injury at the place where and when it was the duty of defendant's servants and agents to be on the lookout for him." From this order granting defendant a new trial, plaintiff appealed.

The cause was argued in this court and submitted and a decision rendered at the October term, 1912. A rehearing was granted, however, and the cause again set down for argument at the present term.

The trouble in reaching a satisfactory determination of this case on appeal grows out of the apparent difficulty in knowing precisely what the learned trial judge meant in the reason given for granting a new trial. Among the points raised by the defense, in addition to those hereinabove mentioned, was the contention that there was no public crossing at Gillis street, that the street having been fenced up immediately north of the track and, being within defendant's switch yards, and there being no user of the track at this point except in daytime, and the accident happening at night, the defendant was under no duty to be on the lookout for any one at that time and place. So that, when the trial judge gave the reason above shown as his ground for setting the verdict and judgment aside, it was possibly open to two interpretations,...