Owen v. Delano

• Decision Date: 30 April 1917
• Docket Number: No. 12389.,12389.
• Citation: 194 S.W. 756
• Parties: OWEN v. DELANO et al.
• Court: Missouri Court of Appeals

194 S.W. 756

OWEN v. DELANO et al.

No. 12389.

Kansas City Court of Appeals. Missouri.

April 30, 1917.

Appeal from Circuit Court, Ray County; Frank P. Divilbiss, Judge.

"Not to be officially published."

Action by Elmer Owen, administrator of estate of Joseph Hughes, against Frederick A. Delano and others, receivers of the Wabash Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

S. J. & G. C. Jones, of Carrollton, and Lavelock & Kirkpatrick, of Richmond, for appellants. A. P. Hamilton, of Richmond, for respondent.

TRIMBLE, J.

This action was brought by the administrator of the estate of Joseph Hughes, deceased, suing in behalf of his distributees to recover the penalty of $2,000 imposed by section 5425, R. S. Mo. 1909, where the death of a human being is caused by the negligent operation of a train. A verdict in the amount of said penalty, to wit, $2,000, was obtained, upon which judgment was rendered, and the defendants, the receivers in charge of and operating the railroad have appealed.

The second amended petition on which the case was tried, stated a cause of action under the humanitarian rule in that while said Hughes was on the railroad track, in the town of Norborne, at a point used by the public, with the knowledge of defendants and the railway operatives, as a public thoroughfare and crossing, and which had become and was such, and where train operatives were required to be on the lookout for persons, he was struck and killed by defendants' east-bound passenger train through the negligence of the engineer who saw, or by the exercise of ordinary care could have seen deceased in time by the exercise of care, to have stopped and avoided the injury, but that he carelessly failed to do so. The aforesaid petition was in two counts, but the same cause of action based upon the violation of the humanitarian rule was alleged in each, and the case was submitted to the jury solely upon that cause of action.

It is true one of the counts also contained an allegation of negligence in the operation of the train through the town at a speed in excess of that allowed by ordinance, but this was in no way inconsistent with the charge of negligence in regard to the humanitarian rule, and hence did not destroy that count. Clark v. St. Joseph Terminal Railroad Co., 242 Mo. 570, 596, 148 S. W. 472; White v. St. Louis, etc., R. Co., 202 Mo. 539, 559-561, 101 S. W. 14; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S. W. 648, 5 L. R. A. (N. S.) 186; Rapp v. St. Louis Transit Co., 190 Mo. 144, 153, 88 S. W. 865; Haley v. Missouri Pacific R. Co., 197 Mo. 15, 23, 93 S. W. 1120, 114 Am. St. Rep. 743. As pleaded and submitted, the case rested upon the one cause of action only, hence we fail to see wherein fault can be successfully found with the instructions or the verdict on the ground that they did not specify any particular count of the petition. There is no complaint that the cause of action based upon the humanitarian rule is not properly or sufficiently stated.

Defendants very strenuously urge that their demurrer to the evidence should have been sustained and the case taken from the jury. The most important question bearing upon this feature of the case is whether or not the evidence tends to show that deceased was, when killed, at a point where the engineer had a right to expect a clear track. This question should be settled at the outset, for whether there is evidence tending to show negligence on the part of the engineer depends largely upon whether he had reason to apprehend that persons might be on the track at that point and therefore should have taken precaution to ascertain whether that which he admits he saw in ample time to have avoided the injury was a human being. The fundamental basis of defendants' contention is the statement, and the assumption therefrom, that the place where deceased was killed was not where the engineer would have reason to think a human being might be. But there is ample evidence to show that the place was a public crossing and thoroughfare, and there was no evidence to the contrary. The killing occurred within the corporate limits of the town of Norborne through which the railroad runs on an almost direct east and west course and on a level grade. The larger portion of the town lies south of the defendants' railroad, which is parallel to and 200 or 300 feet south of the Santa Fé railway. South of the defendants' railroad the ground throughout the town limits is platted up to the right of way, and the ground north of the railways is platted from a line a little over a block west of the Wabash depot eastward to the city limits. Pine street runs north and south through the platted portions on both sides of the railroads and crosses them at or near the west end of said depot. Elm street is the next street east of and parallel to Pine. As shown on the plat it runs north up to the south side of the Wabash right of way, but does not appear as a platted street beyond that. So far as the plat shows Elm street ends at the south side of the Wabash right of way. But the evidence is that the ground on the opposite side is open and was occupied with different business enterprises, first with a mill, until it burned, and then with an apple packing business of some kind. The evidence also shows that although there is no platted continuation of Elm street north across the railroads, yet there is a roadway open and existing on the ground at said point, and that there is, and has been for many years, a crossing on the railroad consisting of boards inside and outside the rails similar to other regular crossings. The evidence is that these crossing boards were put in by the section men of the Wabash, and that they were repaired by said railroad. There is also evidence that this point was on the route of the daily travel of about 50 persons living north of the railroads on their way to and from the business part of Norborne, which is south of the railroad; also that many people in Norborne, in going to the depot, would go north on Elm street to the railroad, and then after crossing the tracks would turn east to the depot. There was evidence that this crossing had been there for 25 or 30 years, that it was there for the public to use, and that the public had used it. One witness who had resided many years in Norborne said it had been used by the public as far back as he could remember. Some of defendants' witnesses in testifying referred to the place as a "crossing"; even the engineer of the train that hit deceased spoke of it as such. It was at this crossing at the end of Elm street as platted that deceased was killed. There was, therefore, ample evidence tending to show that this was a public crossing and thoroughfare, and that the engineer approaching it in his engine would have reason to apprehend that an object which he admits he saw in time, but supposed it was an "old coat," might be a person who would inevitably be killed if he ran over it.

The tragedy occurred about 7:48 p. m. of September 7, 1912. The train was an eastbound passenger, which did not stop at Norborne. It consisted of an engine and tender and four coaches, a mail, baggage, chair car, and sleeper. The track was level and straight for five or six miles before the fatal spot was reached. The train was equipped with an excellent headlight "as good as any railroad system has," and with all other appliances, and they were in good working order. The weather was fair and clear, but no moon.

Joseph Hughes was 25 or 26 years of age, and weighed 160 pounds. About eight or ten minutes before the train was due or before it struck him, he was seen by witness Ralph Kellar. At that time he was sitting on the crossing in question at the south side of the south rail, bent over, with his elbows on his knees, facing south. The witness thought he was intoxicated, as that was his appearance. The fact that this witness did not warn him of his danger, or make an effort to get him away from the track, may disclose either a heartless lack of human sympathy or a fear of attempting to disturb a drunken man, but it hardly authorizes us to say that his evidence is wholly devoid of evidentiary force. A witness, Schoner, a resident of Norborne, 19 years of age, employed as a helper at the depot, swore he was standing on the back or east end of the caboose of a Wabash freight waiting on the passing track, said caboose being at a point a few feet west of the west end of the depot, about at Pine street. Witness said he was talking to the trainmen; that he heard the passenger train whistle, and turned around and looked, and saw the train hit deceased; that at the moment he was struck deceased was sitting at the tie or rail at Elm street facing south, with "his knees up like this, leaning over them, all humped over" and making no movement; that when the train struck him it "just turned him around."

If the evidence of the foregoing witnesses be accepted, plaintiff's showing is that deceased was in a sitting posture from ten minutes before up to the very moment he was struck. However, the last witness himself said there was but one freight train standing there, and all of the other testimony shows that this freight was headed west, and, if so, then he could not have been standing in the rear end of the caboose and saw what he claims to have seen. It is true most of the testimony as to the freight being headed west was from defendants' witnesses, but the testimony of the engineer of the train that struck deceased, who was plaintiff's witness, also shows that the freight was headed west, so that it may be safely said that all of the testimony on the subject contradicted Schoner as to the direction the freight was headed. Defendants' evidence did show, however, that certain of the trainmen were standing at or near the west end of the freight talking at the time of the accident, so that it might be a question for the jury to say whether...