Ransom v. The Union Depot Co.
| Decision Date | 07 March 1910 |
| Citation | 126 S.W. 785,142 Mo.App. 361 |
| Parties | JAMES S. RANSOM, Respondent, v. THE UNION DEPOT COMPANY and UNITED STATES EXPRESS COMPANY, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
REVERSED AS TO THE UNITED STATES EXPRESS COMPANY; REVERSED AND REMANDED AS TO THE UNION DEPOT COMPANY.
Judgment reversed as to Express Company and reversed and remanded as to Depot Company.
Frank Hagerman and Kimbrough Stone for appellant, U. S. Express Co.
(1) Plaintiff was a licensee and this defendant owed him no duty until it discovered or should have discovered his presence. Kelly v. Benas, 217 Mo. 1; Wencker v Railroad, 169 Mo. 592; Barney v. Railroad, 126 Mo. 372; Straub v. Soderer, 53 Mo. 38; Refining Co. v. Mobley (Ky.), 121 S.W. 657. (2) No act of this defendant was a proximate cause. a. Generally. Boone v Insurance Co., 95 U.S. 117; Hudson v. Railroad, 101 Mo. 13; Meade v Railroad, 68 Mo.App. 92; Foley v. McMahon, 114 Mo.App. 442. b. Rule of responsibility of person acting under stress of imminent danger. Hull v. Transfer Co., 135 Mo.App. 119; McFern v. Gardiner, 121 Mo.App. 1; Boyce v Railroad, 120 Mo.App. 168; Lang v. Railroad, 115 Mo.App. 489; Dutzi v. Geisel, 23 Mo.App. 676; Lange v. Railroad, 208 Mo. 458; Root v. Railroad, 195 Mo. 348; Sweeney v. Cable Co., 150 Mo. 385; Dickson v. Railroad, 124 Mo. 140; Bischoff v. Railroad, 121 Mo. 216; Slaughter v. Railroad, 116 Mo. 269; Kleiber v. Railroad, 107 Mo. 240; Siegrist v. Arnot, 86 Mo. 200, s. c. 10 Mo.App. 197; Adams v. Railroad, 74 Mo. 553.
Dana, Cowherd & Ingraham for appellant, Union Depot Co.
(1) There was no negligence of any kind proven against defendant, Union Depot Company, and certainly no proof authorizing the submission of the question to the jury under an allegation that said defendant "negligently pushed or caused or permitted to be pushed upon and against plaintiff said hand truck." To sustain this allegation either a positive act of negligence must be shown or a negligent failure to prohibit. Cyc., vol. 30, p. 1461; Century Dictionary, vol. 5, p. 4407. (2) As plaintiff was a trespasser, or at the utmost a bare licensee, defendant Union Depot Company owed to him no duty except not to wilfully or wantonly injure him or to exercise ordinary care to avoid injuring him after its servants discovered him on said platform and in a position of danger. Kelly v. Benas, 217 Mo. 9; Barney v. Railroad, 126 Mo. 372; White v. Stifel, 126 Mo. 295; Wencker v. Railroad, 169 Mo. 592; Refining Co. v. Moberly (Ky. ), 121 S.W. 657; Barry v. Cemetery Assn., 211 Mo. 105; Straub v. Soderer, 53 Mo. 38. (3) The trucks were in the clear until struck by the messenger of the express company and thereby knocked against the incoming train. Even if they were left in a diagonal position by the Depot Co., such act was not the proximate cause of the injury. Saxton v. Railroad, 98 Mo.App. 494; Kappes v. Shoe Co., 116 Mo.App. 154; Wilson v. Railroad, 129 Mo.App. 658; Foley v. McMahon, 114 Mo.App. 442; Dickson v. Railway, 124 Mo. 149; Hudson v. Railroad, 101 Mo. 13; Boone v. Insurance Co., 95 U.S. 117; Railroad v. Columbia, 65 Kan. 390; Stanley v. Railroad, 114 Mo. 606. (4) Even if defendant, Union Depot Company, was negligent, yet this would furnish no ground of action unless the injury was the probable as well as the natural consequence of such negligence. Saxton v. Railroad, supra; Kappes v. Shoe Co., supra; Wilson v. Railroad, supra; Brewing Assn. v. Talbot, supra; Foley v. McMahon, supra; Railroad v. Kellog, 94 U.S. 469; Fuchs v. St. Louis, 167 Mo. 648; Lynch v. Transit Co., 102 Mo. 642; Smith v. Packing Co., 82 Mo.App. 9; Christy v. Hughes, 24 Mo.App. 277. (5) If the truck was left in a position not parallel to track five, yet there was no evidence showing or tending to show this in any way caused or contributed to the injury. Even if such a position of the truck was negligent there is no causal connection shown between such act and the injury complained of. Stanley v. Railroad, supra; Jackson v. Elevator Co., 209 Mo. 506; Moriarity v. S. & S. Co., 132 Mo.App. 650.
George H. English, Jr., for respondent.
(1) This is clearly a case of concurrent negligence on the part of both defendants, rendering them both liable. Newcomb v. Railroad, 169 Mo. 409; Taylor v. Railroad, 137 Mo. 363; Waller v. Railroad, 59 Mo.App. 426; Holmes v. Railroad, 207 Mo. 164; Andrews v. Boedeker, 126 Ill. 605, 9 Am. St. 649; Railroad v. Conery, 61 Ark. 381, 54 Am. St. 262; Shearman & Redf., Neg. (4 Ed.), par. 31; Thomson, Negligence, 1088; Carterville v. Cook, 129 Ill. 152, 16 Am. St. 248; Nagel v. Railroad, 75 Mo. 653; Boggs v. Railroad, 18 Mo.App. 274; Morrison v. Railroad, 27 Mo.App. 418; Browning v. Railroad, 124 Mo. 55; Benjamin v. Railroad, 133 Mo. 274; Bassett v. City, 53 Mo. 290; Brennan v. City, 92 Mo. 482; Vogelgesang v. City, 139 Mo. 127; Brash v. City, 161 Mo. 437; Meade v. Railroad, 68 Mo.App. 92; Joseph v. Electric Co., 104 La. 634. (2) The defendants owed plaintiff the duty of exercising ordinary care. Hicks v. Railroad, 64 Mo. 430; Railroad v. Johns, 36 Kan. 769; Ingalls v. Express Co., 44 Minn. 128; Rowley v. Railroad (Wis.), 115 N.W. 865. (3) The petition sufficiently and properly charges negligence. Benham v. Taylor, 66 Mo.App. 308; Wills v. Railroad, 44 Mo.App. 51; Foster v. Railroad, 115 Mo. 165.
This suit is for negligence. Verdict and judgment were for plaintiff in the sum of $ 1500, and the case is before us on the appeal of defendants.
The injury occurred about 7:30 o'clock in the morning of May 26, 1902, on the platform of the Union Depot in Kansas City. Plaintiff was not on the platform on any business with the defendants but was using it solely as a way of travel from his home, which was on the bluffs east of the depot to his place of business on Union avenue, a public street on the northwest side of the depot. The course of the depot buildings is from the southwest to the northeast. Union avenue runs parallel to them. On the west, the depot property is bounded by Santa Fe street, which runs north and south. South of the property are the yards of the Burlington railroad, and they are bounded on the south by Twelfth street, which runs east and west. A high board fence separates the yards from the street, but two open gates were in this fence near its west end. Plaintiff entered by one of these gates, passed across the railroad yards, reached the southwest end of the depot tracks which run parallel with the depot on the southeast side thereof and intended to walk up the platform to the main entrance of the depot and to pass through the building to Union avenue. He might have avoided the route he chose by going north on Santa Fe street to its intersection with Union avenue, but that way was longer and not so easy as that over the depot platform.
There was a sign at the gate to warn away trespassers, but it appears the public, with the knowledge of the railroad and depot officials, had disregarded that warning and for six years or more had been in the habit of using the way taken by plaintiff for travel from the bluffs to the territory beyond the depot. About three hundred people traveled this way daily. The tracks in the depot platform are laid in pairs. The pair nearest the depot consists of tracks numbered 1 and 2; the next pair of tracks, 3 and 4, and the last pair, 5 and 6. The union depot is owned and operated by the defendant Depot Company and is used by many railroads as a passenger station. The property is used also by the Express Companies that do business with the railroads. A passenger train had come in on track No. 6, and employees of the defendant Express Company were unloading the express car. They had run a big express truck alongside and had it about half loaded when an employee of the Depot Company warned the man in charge of the truck that a passenger train was coming in on track 5 from the west. The train was coming fast and the truck was on track 5, or so near that track that it would be struck if not moved out of the way. The expressman in charge of the truck received the warning so late that he had but scant time to remove the truck. He did succeed in pulling it across track 5 to the wide space between that track and track 4, but the incoming engine missed the tail of the truck by not over a foot. In the open space between tracks 4 and 5, defendant had a line of baggage trucks not then in use. One of these trucks was out of line and one end of it was quite close to track 5, but in the clear. This was a two-wheeled truck with a small wheel under each end of its platform. When at rest only one of these small wheels could touch the ground, consequently, the truck was unstable and easily shifted from one position to another. The depot platform sloped slightly from the place where this truck stood to track 5, and as the passenger train came in, the truck moved towards the train until it came in contact with one of the passing coaches and was hurled back with violence.
At that time plaintiff, who was walking along in the space between tracks 4 and 5, was struck and injured by the flying truck. The railroad company operating the train (the St. Louis & San Francisco Railroad Company) was made a party defendant, but the jury returned a verdict in its favor. Each of the present defendants offered a demurrer to the evidence but the court overruled both demurrers.
First we shall dispose of the question of the liability of the Express Company. We seriously doubt that the evidence, even in the light most favorable to plaintiff, will support the inference of a collision between the truck pulled by the expressman and the depot truck. The expressman denies that there was a contact of the two vehicles, no...
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