Rice v. Jefferson City Bridge & Transit Co., No. 20301.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRagland
Citation216 S.W. 746
Docket NumberNo. 20301.
Decision Date01 December 1919
PartiesRICE v. JEFFERSON CITY BRIDGE & TRANSIT CO.
216 S.W. 746
RICE
v.
JEFFERSON CITY BRIDGE & TRANSIT CO.
No. 20301.
Supreme Court of Missouri, Division No. 1.
December 1, 1919.

[216 S.W. 747]

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Suit by Frankie Rice against the Jefferson City Bridge & Transit Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This is a suit wherein the plaintiff seeks to recover damages in the sum of $10,000 for the alleged negligent killing of her husband. On June 21, 1914, and prior thereto, the defendant operated an electric railroad along the streets of Jefferson City across its bridge over the Missouri river and on to North Jefferson, a station on the Missouri, Kansas & Texas Railway, about a mile and a half distant. Defendant used a public road for its track for the distance of about a half mile from the northern end of the bridge to where said road turns east; from there on to North Jefferson it had a private right of way, inclosed by a fence with cattle guards at the entrance of its tracks. Along this private way defendant maintained a gravel road from two to four feet from and parallel with its track, which road was used by express wagons. At the wagon entrance and

[216 S.W. 748]

adjacent to the cattle guards there was a big gate, which' was usually kept locked. According to plaintiff's evidence both the gravel road and the railroad track had for many years been used indiscriminately by pedestrians, both by day and by night, in going back and forth between Jefferson City and North Jefferson, and such use had been continuous and extensive and was known to and acquiesced in by defendant.

Plaintiff's evidence tended to further show: Rice, the deceased, lived in Hartsburg, a small village 11 miles west of North Jefferson on the Missouri, Kansas & Texas Railroad; he came to Jefferson City about noon on Saturday, June 20, 1914, where he remained during the afternoon and evening of that day, and about 11:30 p. m. he went into a saloon near the entrance to defendant's bridge across the river, and wanted to buy some whisky on credit. The bartender declined to let him have any, and Rice left by the rear door, saying that he was going home, and walked toward the bridge. Later, between 12 and 1 o'clock, Rice was struck and injured by one of defendant's cars; he was picked up and carried on the car to the Missouri, Kansas & Texas Railroad station at North Jefferson, where he was taken off the car and laid on the platform. At that time he stated to persons standing around that his back hurt; that his name was Partner Rice; that he lived at Hartsburg; and that he wanted to go home. A west-bound Missouri, Kansas & Texas train was then due. The defendant's physician reached there in a short time, however, and, after examining Rice, had him put in an automobile, and conveyed him to St. Mary's Hospital in Jefferson City. In making the trip the doctor had a Mr. Branch assist him. Branch sat on the back seat of the automobile, and Rice on the floor of the car between Branch's legs. Before starting Rice called for a drink, said his back hurt him, and tried to sit up, but could not. Sunday afternoon, June 21st, the defendant's physician telephoned the county undertakers that a "bum" had died at St. Mary's Hospital, and to come out and get the body. While the undertakers were preparing the body for burial, some one came in who recognized the deceased, and his death was at once communicated to his family. At a post mortem examination it was ascertained that one of the vertebra in the spinal column of deceased was dislocated, the spinal cord severed, and that this was the cause of his death. There was a bruise on the forehead, one on the back, and one on the leg. One ear had been nearly severed and sewed on again. The bruise on the back was as though made by a square lick, and was such a one as a man would receive if standing upright and struck by a hard substance. His clothes were not torn. Deceased had a father and two brothers living in Hartsburg, and both he and they were well known there. He also had two brothers living in Jefferson City, who had telephones in their residences and whose names were in the city directory. The record at the hospital, which it is customary to make when a patient is received, showed his correct name, age, address, and wife's name. But neither the defendant nor its physician at any time communicated either deceased's injury or death to his wife or relations.

Defendant's physician first certified to the Bureau of Vital Statistics that the cause of deceased's death was "alcoholism and probably internal injuries." After the post mortem examination, being asked to correct it, he at first demurred, saying that he would have to see "our attorneys." Later he filed a supplemental certificate, in which he gave the cause of death as "alcoholism and probably internal injuries. Said injuries being caused by being struck by a street car."

Plaintiff's evidence was to the further effect that Rice was a strong man, in good health, 34 years of age, employed as a section foreman; that he at times drank to excess, but was never known to be under the influence of liquor to such an extent that he could not walk or take care of himself; that for a quarter of a mile south of where he was struck defendant's track is straight and level; that a car traveling along that portion of the track at the rate of 15 miles an hour could be stopped within 30 or 40 feet; and that the headlight enabled the motorman to see a man 100 yards down the track.

There was evidence on the part of defendant tending to show that its railroad track after it enters its private inclosure was not filled in; that it was grown tip with grass as high as the top of the rails; that there was tall grass upon either side of the car track; that the track was about 4 feet from the gravel road; that the pathway used by pedeotrians was along the center of the gravel road; that the witnesses who testified for the defendant had never seen any one walking upon the track either by day or night; that the car that struck the deceased was equipped with a headlight, and that it was running about 15 miles an hour; that the motorman in charge was keeping a lookout ahead, and that he saw a dark object at the side of the track which he at first glance thought was a shadow; that this object was lying on the outside of the south rail in the weeds between the rail and the gravel road; that when the car got within about 30 feet it made a dipping motion, and the motorman discovered that the dark object was a man; that his feet were lying towards the south, or the direction from which the car was approaching and his head towards the north; that the motorman immediately reversed his power, applied the brake, and brought the car to a stop as soon as possible; that the car passed 8 or 10 feet beyond the point where the man was lying

[216 S.W. 749]

before it came to a stop; that the deceased's position at the time he was picked up had been reversed, and his feet were to the north and his head towards the south; that he made no statement, and they picked him up, put him on the car, carried him to the station at North Jefferson, where they laid him on the platform; that deceased moved his feet and legs after he was placed in bed at the hospital; that defendant's surgeon was of the opinion that Rice was not seriously injured, and so informed defendant's superintendent; that they did not know or inquire his name, for the reason they supposed he was more intoxicated than hurt by being struck by the car, and for this reason no effort was made to locate any of his family; that neither the defendant's surgeon, motorman, or superintendent knew deceased, or knew where he lived, or that he was related to any one living in Jefferson City; that the bruised places on his back could have been made by the bending of his back, and that, had he been standing upon the track at the time he was struck, he would have been knocked forward and run over, and not knocked to one side and outside the rails where he was found lying; and that there were no external injuries which could have been discovered before death which would have warranted defendant's surgeon in the conclusion that deceased's spinal cord had been severed. The foregoing is the general tenor of the evidence. Other facts necessary to an understanding of the questions involved will be stated in the course of the opinion.

No question is raised in respect to the pleadings. The petition avers, in substance, "that for a long time prior to the 21st day of June, 1914, the defendant permitted and suffered persons to walk on, along, and upon said tracks"; "that a great many persons did walk on, along, and upon said tracks"; that while Rice was walking on said tracks he was struck by one of defendant's cars; and that defendant's agents in control of the car saw, or by the exercise of ordinary care could have seen, him in time to have avoided striking him, but that they negligently failed to do so. The answer admits the striking and injury, but denies all other allegations.

At the request of the defendant the court gave to the jury 13 instructions. No complaint is made of the one numbered 2, the others are as follows:

"No. 1. The court instructs the jury that it is conceded and admitted upon the part of the plaintiff that the deceased, Parmer Rice, came to his death by reason of his own negligence directly contributing thereto, but that, notwithstanding such negligence upon the part of the deceased, plaintiff contends that the striking and injury could have been avoided upon the part of the defendant by the exercise of ordinary care after the said Farmer Rice was discovered in this position of peril, or might have been discovered by the exercise of ordinary care on the part of the motorman in charge of defendant's car. In this regard you are instructed that if by reason of the position in which the...

To continue reading

Request your trial
32 practice notes
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...98 S.W. (2d) 969, l.c. 974; Cole v. Uhlmann Grain Company, 100 S.W. (2d) 311, l.c. 322; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746, l.c. 753; Dawes v. Starret, 336 Mo. 897, l.c. 927, 82 S.W. (2d) 43, l.c. 58; Graesser v. St. Louis Public Service Co., 78 S.W. (2d) 551, l.c. 55......
  • Barr v. Nafziger Baking Co., No. 29575.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1931
    ...City Rys. Co. (Mo.), 222 S.W. 827; Zini v. Terminal Ry. Assn. (Mo.), 235 S.W. 86; Rice v. Jefferson City Bridge & Transit Co. (Mo.), 216 S.W. 746; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Althage v. People's Motorbus Co. (Mo.), 8 S.W. (......
  • Lloyd v. Alton Railroad Co., No. 37660.
    • United States
    • United States State Supreme Court of Missouri
    • December 12, 1941
    ...S.W. 428; Bente v. Finley, 83 S.W. (2d) 155; State v. Psycher, 179 Mo. 159, 77 S.W. l.c. 841; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746; Owen v. So. Ry. Co., 133 So. 33; Eads v. Galt Tel. Co., 199 S.W. 710; Utz v. Skinner, 249 S.W. 651; Atchison, etc., R. Co. v. Molone, 197 ......
  • Wright v. Quattrochi., No. 30040.
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1932
    ...Downing v. Ry. Co., 285 S.W. 791; State ex rel. Life Ins. Co. v. Trimble (Mo.), 276 S.W. 1020; Rice v. Jefferson City, etc., Co. (Mo.), 216 S.W. 746; Kamoss v. Kansas City & W.B. Ry. Co., 202 S.W. 434. (3) The court erred in giving to the jury Instruction 7. Gillette v. Laederich, 242 S.W. ......
  • Request a trial to view additional results
32 cases
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...98 S.W. (2d) 969, l.c. 974; Cole v. Uhlmann Grain Company, 100 S.W. (2d) 311, l.c. 322; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746, l.c. 753; Dawes v. Starret, 336 Mo. 897, l.c. 927, 82 S.W. (2d) 43, l.c. 58; Graesser v. St. Louis Public Service Co., 78 S.W. (2d) 551, l.c. 55......
  • Barr v. Nafziger Baking Co., No. 29575.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1931
    ...City Rys. Co. (Mo.), 222 S.W. 827; Zini v. Terminal Ry. Assn. (Mo.), 235 S.W. 86; Rice v. Jefferson City Bridge & Transit Co. (Mo.), 216 S.W. 746; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Althage v. People's Motorbus Co. (Mo.), 8 S.W. (......
  • Lloyd v. Alton Railroad Co., No. 37660.
    • United States
    • United States State Supreme Court of Missouri
    • December 12, 1941
    ...S.W. 428; Bente v. Finley, 83 S.W. (2d) 155; State v. Psycher, 179 Mo. 159, 77 S.W. l.c. 841; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746; Owen v. So. Ry. Co., 133 So. 33; Eads v. Galt Tel. Co., 199 S.W. 710; Utz v. Skinner, 249 S.W. 651; Atchison, etc., R. Co. v. Molone, 197 ......
  • Wright v. Quattrochi., No. 30040.
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1932
    ...Downing v. Ry. Co., 285 S.W. 791; State ex rel. Life Ins. Co. v. Trimble (Mo.), 276 S.W. 1020; Rice v. Jefferson City, etc., Co. (Mo.), 216 S.W. 746; Kamoss v. Kansas City & W.B. Ry. Co., 202 S.W. 434. (3) The court erred in giving to the jury Instruction 7. Gillette v. Laederich, 242 S.W. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT