Owens v. Kansas City, C. C. & St. J. Ry. Co.

• Decision Date: 03 December 1917
• Docket Number: No. 18755.,18755.
• Citation: 201 S.W. 548
• Court: Missouri Supreme Court
• Parties: OWENS v. KANSAS CITY, C. C. & ST. J. RY. CO.

201 S.W. 548

OWENS v. KANSAS CITY, C. C. & ST. J. RY. CO.

No. 18755.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Rehearing Denied December 22, 1917.

Opinion Modified, and Motion to Change Certain Language in Opinion Denied March 4, 1918.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by Mary Owens against Kansas City, Clay County & St. Joseph Railway Company. From order sustaining motion for new trial, defendant appeals. Affirmed and remanded.

This is an appeal from an order of the circuit court for Platte county sustaining a motion for a new trial. One of the grounds for this action stated in the plaintiff's motion for a new trial is as follows:

"IV. Because the court erred in giving instructions numbered 6, 7, 8, 5, 10, 2, 3, 9, and 4 at the request of defendant over the objection of plaintiff."

The order of the court sustaining the motion stated:

That it was "sustained on the one, sole, and only reason that defendant's given instruction No. 10 is erroneous, and for no other reason whatever."

During the trial and at the close of the plaintiff's evidence the defendant asked the court to instruct the jury to return a verdict in its favor, which the court refused, and defendant excepted. The same was repeated at the close of all the testimony. There is no statement in the bill of exceptions filed by appellant as to whether or not the plaintiff, at the trial, objected to any instruction given for defendant, other than the statement to that effect in the Motion for a new trial.

The suit was for damages for the death of plaintiff's husband alleged to have been caused by negligence of defendant in striking him with one of its cars on its line of electric railway between Excelsior Springs and Kansas City, and knocking him from the defendant's bridge upon which he was at the time. The facts were that the deceased had been in Kansas City that day, and at some time in the neighborhood of 6 o'clock in the evening had taken a car on defendant's line going east, which he left at the station of Avondale, and started east, walking upon defendant's track, which crossed a steel trestle bridge just east of that station. The bridge was 600 or 700 feet long, with no structure above the deck on which the track was laid upon wooden ties projecting a short distance on each side, with spaces between them, and held in place by a longitudinal timber bolted to them at their ends. The structure was of sufficient height to clear the operation of a steam railway which passed underneath it, as did also a public road. At the time of the accident the deceased had arrived at a point more than 100 feet from the west end of the bridge, and was sitting upon the ends of these ties at the north side of the track which curved to the south with a deflection of something more than three degrees in each 100 feet, so that he was sitting on the outside of the curve. When the car approached him from the east it had left Liberty, several miles east of the place, at 6:45 o'clock, so that it was after dark. The motorman was standing in his position in the front vestibule, with his right hand on the control of the air valve which operated the brake. The headlight was an arc lamp in front of a reflector, and was strong enough so that the cone of light plainly extended to a distance of 1800 feet, but in passing around the curve to the left it left the rails and floor of the bridge some distance ahead, so as to leave the structure itself in darkness. The motorman testified that as he was looking ahead the cone of light swung to the track and lighted the face of the deceased, who seemed to be in the act of rising, and that he immediately applied the emergency brake, stopping the car at a distance of from 380 to 400 feet from the place at which the man first became visible to him. This was the best he could do. The motorman also stated that when he saw him the deceased was near a steel beam which extended across the structure and somewhat outside the ends of the ties, and that if the man had had sufficient presence of mind he might have stepped on that and saved himself. This witness did not know whether he struck the deceased or whether he fell off the bridge. When the car passed he was gone and afterwards picked up below the bridge, having received mortal injuries about the head and body. When he was picked up he had whisky in his pockets, and there was evidence that he was somewhat intoxicated when he left Kansas City.

The foregoing are substantially the undisputed facts about which a considerable amount of evidence revolves, which we can notice more effectively in the opinion.

John E. Dolman, of St. Joseph, and Hadley, Cooper, Neel & Wright, of Kansas City, for appellant. J. H. Hull, of Platte City, and Handy & Swearingen, of Kansas City, for respondent.

BROWN, C. (after stating the facts as above).

I. That the deceased was a mere trespasser upon the defendant's bridge, which was constructed for purposes of railway traffic only, and was guilty of negligence in placing himself in the position in which he was encountered by the car, is clearly shown by the evidence, and the duty which the defendant owed him under such circumstances was clearly and correctly submitted by the plaintiff's instructions, which are not criticized by the appellant. This duty has long been designated by this court as well as by many others the "humanitarian doctrine," because it arises...