Ransom v. Union Depot Co.

• Decision Date: 07 March 1910
• Citation: 126 S.W. 785,142 Mo. App. 361
• Parties: RANSOM v. UNION DEPOT CO. et al.
• Court: Missouri Court of Appeals

126 S.W. 785

142 Mo. App. 361

RANSOM v. UNION DEPOT CO. et al.

Kansas City Court of Appeals. Missouri.

March 7, 1910.

Rehearing Denied April 4, 1910.

1. NEGLIGENCE (§ 12) — ACTS IN EMERGENCY.

An employé of an express company, while unloading an express car, was warned that a train was coming into the depot upon a track close to the place where his truck stood, and that he must move his truck immediately to avoid collision with the train, and he got it across the track of the incoming train and upon a platform. In doing so, the truck collided with a depot truck on the platform and caused the depot truck to roll down so close to the track that it was struck by the incoming train and thrown against plaintiff, who was passing along the platform. Held, that the expressman was not guilty of negligence, even though he hesitated for a moment before acting and did not follow the most expeditious course in moving the truck to a place of safety, as he was suddenly confronted by a great peril which gave him no time to think.

2. TRIAL (§ 169) — DIRECTION OF VERDICT — PLEADING — VARIANCE.

In an action against a depot company for injuries from being struck by a truck that was struck by an incoming train and pushed against plaintiff, the only negligence alleged in the petition was that defendant "carelessly and negligently pushed, or caused or permitted to be pushed, upon and against plaintiff, said hand truck with great force and violence." The negligence shown by the evidence consisted in sending the train which struck the truck into the depot without giving an expressman, who was unloading an express car, sufficient warning to enable him to remove his truck without striking the depot truck and causing it to roll down against the incoming train, and in leaving the depot truck in a position where a slight touch or even the jar of the passing train might cause it to roll against the train. Held, that neither of these acts of negligence were within the scope of the petition, and the jury should have been directed to return a verdict for defendant.

3. RAILROADS (§ 274) — CARE AS TO LICENSEES.

A depot company posted a sign on its premises to warn away trespassers, but the public, with the knowledge of the depot officials, disregarded the warning, and for six years or more before the accident to plaintiff had been in the habit of passing through the depot, instead of using a street which extended around the depot. Plaintiff was injured while passing through the depot in order to avoid the longer way by the street. Held, that he was a licensee, and that the defendant owed him not only the duty not to wantonly or recklessly injure him, but also the duty of ordinary care.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by James S. Ransom against the Union Depot Company and the United States Express Company. Judgment for plaintiff, and defendants appeal. Reversed as to the express company, and reversed and remanded as to the depot company.

Frank Hagerman and Kimbrough Stone, for appellant United States Express Co. Dana, Cowherd & Ingraham, for appellant Union Depot Co. Geo. H. English, Jr., for respondent.

JOHNSON, J.

This suit is for negligence. Verdict and judgment were for plaintiff in the sum of $1,500, and the case is before us on the appeal of defendants.

The injury occurred at 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 Fé 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 Fé 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 300 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 employés 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 employé 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 removed 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-wheel 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 contract 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 favorably 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 witness states positively that there was a collision between them, and it is reasonable to think that the vibration of the platform caused by the passing train started the depot truck forward. We think the jury was compelled to indulge in conjecture to find against the express company on this fact. Moreover, we may assume for argument that the two trucks did collide, and still we must say that the evidence fails to accuse the expressman of negligence. He could not know on what track the passenger train would come in, and it was the custom of the depot company to send a pilot ahead to give warning. Either on account of the slowness of the pilot, or because of the speed of the...