Reeves v. Kansas City, St. L. & C. R. Co.

• Decision Date: 17 June 1913
• Citation: 158 S.W. 2
• Court: Missouri Supreme Court
• Parties: REEVES v. KANSAS CITY, ST. L. & C. R. CO.

158 S.W. 2

REEVES v. KANSAS CITY, ST. L. & C. R. CO.

Supreme Court of Missouri, Division No. 2.

June 17, 1913.

1. COURTS (§ 231) — JURISDICTION — NATURE OF CONTROVERSY — CONSTITUTIONALITY OF STATUTES.

Though pending an appeal to the Supreme Court, on the ground that the constitutionality of a statute is challenged, the Supreme Court decided that the statute is valid, the Supreme Court must still retain jurisdiction and dispose of the case on its merits.

2. RAILROADS (§ 335)—ACCIDENTS AT CROSSINGS —CARE REQUIRED BY PEDESTRIANS.

Where a person, struck at a crossing by a train running above the maximum speed fixed by city ordinance, had lived near the track for two years, and the train had been running for some time at an excessive speed, it must be presumed that she knew the usual speed of the train, and she was not justified in stepping on the track when she knew that a train was approaching at the usual rate.

3. RAILROADS (§ 333)—ACCIDENTS AT CROSSINGS—CONTRIBUTORY NEGLIGENCE.

A pedestrian when within six or eight feet of a railroad crossing looked towards an approaching train, and then walked more rapidly onto the track, and had almost passed over when the engine struck and killed her. The train made considerable noise, and was in plain view for about 1,500 feet. Held, that she was guilty of contributory negligence as a matter of law.

4. RAILROADS (§ 338)—ACCIDENTS AT CROSSINGS—HUMANITARIAN DOCTRINE.

Where an adult looked towards an approaching train, and then walked rapidly on the track and was then struck by the train, and the trainmen had no knowledge of any defect in her eyesight or hearing, the humanitarian doctrine was inapplicable, and there could be no recovery on the theory of the failure of the engineer to discover the peril and stop the train in time to prevent the accident.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Nelson Reeves, administrator of Margaret Cozby, deceased, against the Kansas City, St. Louis & Chicago Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Plaintiff sues as the administrator of Margaret Cozby to recover statutory damages resulting from her death. It is alleged that Mrs. Cozby was killed in the city of Oak Grove, Jackson county, Mo., on December 23, 1905, by a lessee of defendant, while said lessee was negligently operating a railroad train over defendant's road through said city. Plaintiff alleges in his petition that defendant's lessee negligently caused the death of Mrs. Cozby by: (1) Running its train in excess of 12 miles per hour, as prohibited by an ordinance of said city of Oak Grove; (2) by running its train through said city at an excessive, high, and dangerous rate of speed, to wit 35 miles or more per hour; and (3) by neglecting to observe the perilous position of said Margaret Cozby while she was on or near defendant's track, and by neglecting to slacken the speed of said train after she was observed, so as to avoid running over, striking, and killing her.

This action is based upon section 5425, R. S. 1909, as amended in 1905, and appellant challenges the constitutionality of that statute. Since this appeal was lodged here the constitutionality of that law has been confirmed by this court in the case of Young v. Railway, 227 Mo. 307, 127 S. W. 19; but, as the appeal was properly granted to this court when taken, it is our duty to retain jurisdiction and dispose of the case upon its merits. Dickey v. Holmes, 208 Mo. 664, 106 S. W. 511.

The answer of defendant pleads contributory negligence on the part of deceased, and many other alleged defenses, but the conclusions we have reached render it only necessary to deal with the plea of contributory negligence. At the time Mrs. Cozby was killed Oak Grove was a city of the fourth class, containing about 800 inhabitants. Said city has one principal street—Broadway—which runs north and south. The defendant owns a railroad track which passes through said city from west to east, crossing said Broadway street in such manner as to leave the residence part of the city on the north side of the railroad and the business houses therein on the south side of said railroad. There is a sidewalk and also a wagon road over defendant's railroad track where the same crosses said Broadway street. The deceased was a widow, without minor children or other dependents. She was 72 years of age, and her hearing and eyesight somewhat defective. However, it was her custom to go unattended about the streets of Oak Grove, in which city she had resided two years next before her death. The lessee of defendant, on December 23, 1905, ran a passenger train through said city of Oak Grove on defendant's track at a speed of from 35 to 50 miles an hour. Said train was known as the "Red Flyer," and had been running from west to east on defendant's track through said city of Oak Grove at about the same rate of speed during many weeks. Its regular time for passing Oak Grove was 11 o'clock in the morning, but it did not stop at that city. It was running on time December 23d, when it struck and killed Mrs. Cozby.

The plaintiff introduced G. W. Gillespie and wife who testified that they were driving south on said Broadway street in a buggy, intending to cross defendant's track. Mrs. Cozby was walking in the same direction, and was a short distance behind the Gillespies. When Mr. and Mrs. Gillespie were about 40 feet from defendant's railroad they heard an engine whistle, and stopped and waited for the train to pass, but Mrs. Cozby passed their buggy and walked on southward. When she was within six or eight feet of defendants's track she looked westward towards the approaching train; she then pulled up her dress skirts and...