Packer v. Chicago. M. & St. P. Ry. Co.

• Citation: 265 S.W. 119
• Decision Date: 26 May 1924
• Docket Number: No. 15063.,15063.
• Parties: PACKER et al. v. CHICAGO, M. & ST. P. RY. CO. et al.
• Court: Court of Appeal of Missouri (US)

265 S.W. 119

PACKER et al. v. CHICAGO, M. & ST. P. RY. CO. et al.

No. 15063.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

Rehearing Denied October 9, 1924.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by John H. Packer and another against the Chicago, Milwaukee & St. Paul Railway Company and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Fred S. Hudson, of Kansas City, for appellants.

Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for respondents.

BLAND, J.

This is an action for wrongful death. Plaintiffs recovered a verdict and judgment in the sum of $7,500, and defendants have appealed.

The suit was brought by the father and mother of Kenneth Packer, who was killed on the 12th day of May, 1922, in the city of Liberty, Mo., by being struck, run over, and instantly killed by one of the trains of the defendant railway company. Defendant Maybank was the engineer. The railroad track as it approaches the town of Liberty from the west runs in somewhat of a northeasterly direction; at about the point of the accident and for several hundred feet west of it the track runs east and west. The accident happened about 150 to 200 feet west of Missouri avenue which intersects the railroad tracks in Liberty at right angles. Plaintiffs' son had been sent for a bucket of milk to the house of a neighbor by the name of Tarrants, whose residence was three or four blocks from plaintiffs' home and was situated on Missouri avenue and adjoining defendant railway company's right of way. The boy started to return home and was walking down the railroad track toward the west in the direction from which the train came. The accident occurred about 6:45 p. m. of a cloudless day.

The negligence charged in the petition is of a twofold character: (1) Under the humanitarian doctrine, and (2) the operation of the train in excess of 10 miles per hour, the limit of speed fixed by ordinance of the city of Liberty for the operation of trains within its limits. The answer consists of a general denial and an allegation that the deceased contributes: directly to his injury, "in this, that he placed himself upon a railroad track approaching a fast moving train without looking or listening, when by looking be might have seen, and by listening he might have heard, the approach of said train in ample time to have placed himself in a position of safety and thereby averted the accident complained of." Defendants now insist that their instruction in the nature of a demurrer to the evidence should have been given. This instruction was general and was not aimed at any particular theory of recovery sought in the petition, and as defendants by their other instructions joined with plaintiff in submitting the case to the jury upon the humanitarian theory, they are now estopped from alleging that plaintiff failed to make out a case under that theory. Torrance v. Pryor (Mo. App.) 210 S. W. 430. However, we are satisfied that there is sufficient evidence from the record to justify the submission of the case to the jury upon that theory.

The evidence shows that the point where deceased was walking had been used extensively by a great many pedestrians for some time prior to the time of the accident. Defendant insists that there is no evidence that it was used at the time of the day in question by pedestrians, but from the evidence we think there is a clear inference to the contrary. Defendant's witness Humphrey testified that he had traveled the track at this point "every night for six months." "Q. Did a great many other neighbors make a like use of it? A. It was almost a sidewalk; yes, sir. There was a great deal of travel on it." There was also testimony that the track was used by employees of the Odd Fellows Home about the same time of the day the accident occurred. The engineer testified that he knew that there was a path crossing the railroad within 10 feet of where deceased was struck. In looking out for persons on this path he would necessarily see deceased, and he did, in fact, see him, as will hereinafter be disclosed. There were several photographs introduced in evidence showing the paths along and across the track in the vicinity of the accident, and also a plat relating to the same things which have not been brought here by the defendants in its abstract of the record. It was their duty to do this if they desired us to pass upon this point. Brigman v. City of St. Joseph, 213 Mo. App. 577, 251 S. W. 724.

Packer, the father of deceased, testified that he saw the accident while standing in his yard 800 feet from where the boy was struck and killed; that the boy was 11 years and 4 months old at the time and was a bright, intelligent boy with good hearing; that his son had gone to the Tarrants with a gallon bucket for milk; that he did not return as soon as expected, and the evening meal being in preparation, he went out of the house to look for him. He saw his son upon the track. The witness was south of the track and saw his son on the track near the north rail, looking back in a southeasterly direction; he saw some dust rise up on the track close to his son's feet. His son was looking back at a little house near the track and to the south thereof. His son raised up and took a step or two toward the inside of the track. Shortly afterwards when the engine was 15 feet from the boy, the engineer sounded several short blasts of the whistle. The boy then turned his head toward the engine, dropped his bucket, threw up his hands, and the engine struck him, running over him.

Packer further testified that he supposed the dust was a "clod or something that had been thrown" at his son. At the time the witness saw the dust, the train was about. 580 to 600 feet from the boy, coming at a speed of 35 miles an hour. The witness heard the train' whistle about 2,000 feet west of where his son was struck, but did not hear any further signal from the train until it reached a point 15 feet from the boy. When the train reached a point 500 or 600 feet from the boy, it slackened its speed to about 25 miles per hour. The boy had on a white shirt, blue overalls, and a dark skull cap without a vizor. The boy was instantly killed when struck. There was a large tree with limbs extending over the right of way which obscured the view of the engineer, who was seated on the right side of the engine. Deceased had a clear view westward down the track from 1,500 to 1,800 feet. The engineer had a view of deceased when he reached a point 550 feet from where the boy was hit. There was other testimony that the engineer could have seen deceased for a distance of 680 feet. When Packer first saw his boy standing, the train was 650 feet tom the boy. Packer further testified that there were other trains moving on the tracks of the Burlington Railway about 1,000 feet away. At that point a freight train was switching and another one was pulling out. A Burlington passenger train went east just prior to the time the boy was struck. The freight train that was switching was puffing.

The testimony of the engineer is very conflicting. His deposition was introduced in evidence by plaintiff, and when he was placed upon the stand he contradicted almost everything he said in his deposition. He gave as an excuse for these contradictions that he was giving his best judgment of distances at the time his deposition was taken, but had made actual measurements since. However, plaintiffs are entitled to have us take his testimony that is most favorable to them in discussing the question of the demurrer to the evidence. His testimony shows that he was about three minutes late on coming into Liberty. He testified that he whistled first for the Liberty station and then for the Missouri street crossing, 80 rods distant, and that about the time he passed the tree he saw the boy 500 feet away upon the track, walking in the direction of the train and with a small pail in his hand; that soon afterwards the boy began moving toward the outer or north rail of the track; that he did nothing toward warning the boy of the approach of the train until it arrived at a point about 150 feet from the boy, when he blew a series of short blasts of his whistle. He testified the boy did not seem to change his course, but continued right on until he reached a point where "he just disappeared from my view," which would be about 60 feet away, "on account of the height of the running board" of the enginse. About the time he passed the place where the deceased was struck, he asked the fireman if the boy had got off the track, the fireman, who was on the opposite side of the cab, looked out and said, "No," and the engineer immediately applied the emergency brake and brought the train to a stop.

The engineer in his deposition said that he stopped the train within 100 to 150 feet. He testified that the boy was walking along with his head up; that when he first saw him he was in the center of the track; that the boy changed his course before the whistle was sounded and went toward the north rail, "giving every indication that he intended leaving the track almost any time." "In my opinion he could have stepped over in time with one step." He testified his train was going about 25 miles an hour until he reached a point 700 feet west of Missouri avenue, when he applied his brake, slowing down his train to 20 miles an hour, and that it continued at that rate of speed until it struck the boy; that he had not been in the habit of driving his engine more than 10 miles an hour through the town of Liberty. "As a rule we reduce our speed to what I regard as ten miles an hour over Missouri street and Leonard avenue, two very dangerous crossings." He testified that he never again checked the speed of his train until he struck the boy; that when he blew the whistle 150 feet from the boy, the boy "didn't change his movement in any way; he seemed to...