Parker v. St. Louis-San Francisco Ry. Co.

• Decision Date: 27 June 1927
• Docket Number: No. 16044.,16044.
• Citation: 297 S.W. 146
• Parties: PARKER v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

297 S.W. 146

PARKER v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 16044.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Rehearing Denied July 11, 1927.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by Erie B. Parker, administratrix of the estate of George W. Parker, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

Malcolm S. Garrard, C. W. Prince, E. A. Harris, and James N. Beery, all of Kansas City, for respondent.

WILLIAMS, C.

Erie B. Parker, as administratrix of the estate of her husband George W. Parker, brings this suit. The suit is for damages for the death of George W. Parker. At the time of the accident which killed George W. Parker, he was engaged in interstate commerce and working for the defendant. A large lump of coal had fallen upon one of the tracks in the yard of defendant in Kansas City, Mo. The deceased, accompanied by another workman, had started across the yards for the purpose of removing this lump of coal. The deceased was struck and killed by two north-bound cars that had been shunted on track called track No. 29. The tracks in the yard run generally north and south. The deceased and his colaborer had moved to a point immediately west of track No. 29, and a few feet east of the lump of coal, when their way was blocked by a string of freight cars moving south. Deceased was last seen alive about 14 feet south of the place where he was discovered after he was killed. Deceased and the other workman were standing in the space between the west rail of the track upon which the cars which struck him were moving and the east rail of a crossover track, the crossover track running in a southwesterly direction from a frog. The space between the two rails was about 30 inches. The ordinary box car projects from 18 to 25 inches past the rail. A switch foreman threw the switch that allowed the two cars to pass to track No. 29. These cars were running slowly by gravity, unattended, and struck and killed the deceased. The cars were moving toward deceased when Barnby last saw him alive, and were about 20 or 30 feet from him. There was a drag of about 25 cars being pulled off of track No. 30 going south. The body of deceased was found about opposite the lump of coal. Witness could not tell when he last saw Parker what Parker was looking at, or whether he was talking to anybody; that deceased was looking west and the cars that struck him were going north at about 6 miles an hour. The witness further testified that it is a custom not to kick cars on tracks where men were seen working or standing and working under cars. Witness further testified that he did not shout at the deceased nor did he whistle. Witness further testified that he was 50 or 60 feet away at the time he last saw deceased. Witness testified that he was able-bodied and could run, but he did not run and warn this man of the approaching danger.

After the view of witness Barnby was cut off by the passing of the cars, he saw deceased lying on the frog of track No. 29 about 14 feet north of the place they had been standing before the occurrence. The pocket of the coat of deceased had been torn off and was handing on the projecting brake beam of one of the cars.

The petition contained five assignments of negligence embodying three theories. Only one theory was submitted to the jury, which was, a failure to warn. Defendant before the submission of the case filed a general demurrer, which was overruled; he then asked an instruction, No. 1, as follows:

"The court instructs the jury that, under the evidence, there was no duty on the witness, Barnby, to keep a lookout for the safety of George W. Parker, mentioned in evidence, and to notify him of the danger, if any, of being struck by cars being switched in the yards of defendant at the place and at and prior to the time the said Parker was injured as shown by the evidence. (Refused. C. R. P.)"

This instruction was refused. After which he submitted instructions defining the duty of deceased to look out for his own safety and that it was unnecessary to warn deceased until after he was seen to be in a position of peril and was oblivious thereto. Some other facts will be noticed in the course of the opinion.

A verdict was rendered for $5,000, and after an unavailing motion for a new trial, defendant brings the case here by appeal.

It is contended by appellant that the plaintiff failed to make a case for the jury. This contention is answered by the respondent by saying that the appellant by its answer and by its failure to ask a withdrawal instruction, and joining in the submission of the question submitted to the jury, cannot now raise the question.

The answer is as follows:

"Comes now defendant, and for answer to the petition of the plaintiff filed herein avers: (1) It denies each and every allegation in said petition contained. Wherefore, defendant asks to be dismissed with costs. (2) For a second and further answer and defense to said Petition, defendant states that if the said George W. Parker was injured at the time and place alleged in said petition his own negligent acts and conduct in failing to keep a lookout for his own safety while working on or about railroad tracks contributed to any injuries he may have received. Wherefore, defendant asks to be dismissed with costs. (3) For a third and further answer and defense to said petition, defendant states that if the said George W. Parker was injured at the time and place alleged in said petition his injuries were the result of the ordinary dangers and risks incident to and attendant upon his employment, which risks were assumed by him. Wherefore, defendant asks to de dismissed, with costs."

The answer very similar to the one in this case has been construed in Hart v. Chicago, M. & St. P. R. Co. (Mo. App.) 265 S. W. 116, loc. cit. 118, and the court said:

" * * * Has been construed as an admission, on the part of the defendant, of the obliviousnes of the driver of the automobile, or of the imperiled person in a similar situation."

And as said in Dincler v. Chicago, M. & St. P. R. Co. et al. (Mo. App.) 265 S. W. 113, loc. cit. 115:

"The answer of the defendant railway pleads that the death of the deceased was caused by her own carelessness and negligence, in that she 'failed to exercise any care or caution whatever for her own safety, in this, that she failed to look or listen for the approach of trains, but continued along said road in said automobile and attempted to cross said track in front of a fast-moving train, without looking or listening for the approach of the same.' This is an admission that deceased was oblivious of her peril."

Following the rule in the last-mentioned case we have in the case at bar an admission by the pleadings that the deceased was oblivious to his danger. This seems to be the extent of the holding. Other elements are necessary for plaintiff to make a case for the jury. We must look to the evidence to supply this defect, unless perchance the defendant is estopped, by its instructions, from questioning the sufficiency of the evidence.

The defendant asked instruction No. 1 above set out.

We recognize as announced in Torrance v. Pryor et al. (Mo. Sup.) 210 S. W. 430, loc. cit. 433, that where several grounds of negligence are pleaded and the defendant asks only a peremptory instruction to find for defendant, and afterwards joins in submitting the case to the jury, the defendant is estopped to question the sufficiency of the evidence upon the question thus submitted. The rule is thus stated:

"This, for the reason that, after defendant has made his point clear, he is not estopped by the theory contained in his other instructions, which theory is forced upon him by the action of the court. To illustrate, if plaintiff's case is founded upon several alleged acts of negligence, and defendant, by demurrer, challenges the sufficiency of the evidence as to one of the grounds of negligence, it should not be said that he is precluded from asking instructions on the theory adopted by the court in overruling the demurrer. To so hold would force the defendant to stand upon his demurrer before the jury."

This latter rule is recognized and followed in Doerr v. Insurance Co. (Mo. Sup.) 285 S. W. 961, loc. cit. 962, and is the well-settled law. The reason given is that the defendant must make his point clear to the trial judge.

The question again narrows itself to whether or not instruction No. 1 did make the point clear to the trial judge. While this question has never been presented to appellate courts of this state...