Ruenzi v. Payne

• Decision Date: 23 May 1921
• Docket Number: No. 13986.,13986.
• Parties: RUENZI v. PAYNE, Agent.
• Court: Missouri Court of Appeals

231 S.W. 294

208 Mo. App. 113

RUENZI v. PAYNE, Agent.

No. 13986.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

Action by William Ruenzi, administrator of the estate of Julia Bell, deceased, against John Barton Payne, Agent, substituted for defendant Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McBaine & Clark and Jas. E. Boggs, all of Columbia, for appellant.

Don C. Carter, of Sturgeon, and J. M. Johnson and Donald W. Johnson, both of Kansas City, for respondent.

TRIMBLE, P. J.

The administrator-plaintiff herein, under the fourth clause of the death statute (now section 4217, R. S. 1919), brought this suit, praying a recovery of $2,000 because of the death of Julia Bell, who was killed at the Wabash Railroad crossing on Ogden street in the city of Sturgeon, Mo. Verdict and judgment for the above-named amount were obtained, and the defendant has appealed.

Sturgeon is a city of the fourth class, and Ogden street, 80 feet wide, runs north and south and, being the main business street of the town, is a much-traveled thoroughfare. The Wabash Railroad runs east and west through the town and crosses Ogden street at right angles. Mrs. Bell was 65 years old and a widow with no children, but she had several brothers and sisters. She was proceeding as a pedestrian north along the sidewalk on the west side of Ogden street about 5:40 p. m. of August 29, 1919, and, as stated attempted to cross over the main line of the Wabash Railway, when she was struck and instantly killed by the Wabash west-bound fast passenger train, the road being then in the control of and operated by the Director General.

Many years before this Mrs. Bell had lived in Sturgeon, but she was a visitor and stranger there at the time, having been in town only about a week, and knew nothing of the schedule of trains nor of the running of this fast train through the town without stopping.

In proceeding north along the west side of the street, there are three tracks to be encountered, first, the house track, next, the passing track, and, last, the main track, on the last of which Mrs. Bell was killed. According to plaintiff's evidence, the passing or middle track was 8 feet north of the first or house track, the main track was 8 feet north of the middle track, and it was 32 feet from the south rail of the first track to the north rail of the main line or last track. According to defendant's plat, the middle track was 10 feet 3 inches north of the first track, the main track was 13 feet 5 inches north of the middle track, and the two rails of each track were 5 feet apart, making it 38 feet 8 inches from the south rail of the first track to the north rail of the main line or last track.

The house and passing track, after beginning somewhere west of Ogden street, ran east to and across said street, parallel with the main track, and continued thus eastward beyond Ogden street for a distance of 380 feet to a switch where the said two tracks merged into the main line. The depot was immediately west of Ogden street and on the north side of the main track. From the depot eastward to the above-mentioned switch the ground on which all the tracks lay was practically level, but from the switch continuing on eastward there was considerable down grade to a point about 200 yards from a bridge, which bridge is said to be "hardly a quarter" of a mile east of the switch, and from said point to and past the bridge going east there was a heavy up grade.

South of and alongside the first or house track, and from Ogden street eastward, there was a line of buildings, a coal house, oil tanks and two or three elevator buildings. These obstructed a view of the tracks and of a train approaching from the east, by any one going north along the west side of Ogden street, until the first track was reached. When this point was reached a pedestrian could see down the main track at least to the switch, a distance of 380 feet as heretofore stated. After passing over the first track a pedestrian could see east along the main track for a distance of "a quarter of a mile or further," and when on the second or middle track one could see east along the main track for two miles.

About 80 or 100 feet south of the crossing and on the west side of the street is a chicken house, and plaintiff's evidence is that when Mrs. Bell, in her northward journey along the sidewalk, reached the chicken house, a freight train headed east and on the middle track 125 feet west of the crossing began moving, emitting steam, puffing and making a noise which she could hear, but she could not see the freight train on account of the string of cars on the first track ex= tending west from Ogden street. She looked in that direction and increased her gait until she came to the first track where the car jutted out over the sidewalk. Here she made a little detour out into the street around the end of the car and back to the sidewalk again. As she came around the end of the projecting car she was looking at the puffing freight engine as it was moving slowly toward the crossing emitting clouds of steam and making a noise as heretofore stated. It was then 50 or 60 feet west of the crossing. She acted as though she decided, from the slow rate the freight was moving and the distance it was away, that she had plenty of time to cross, and thereupon hastened her speed and continued on north, watching the freight train. Various persons in the vicinity who knew the fast passenger from the east was due and was coming, and who observed that her attention was wholly absorbed by the freight train, and that she had not at any time looked eastward, and was therefore unaware of the approach of the passenger train, began shouting warnings to her. She could not hear what the shouters were saying because of the noise the freight train was making. The evidence in plaintiff's behalf is that the shouts excited her, at least she acted that way; that "she acted like she didn't know whether she could get across for the freight or not"; that, although she had theretofore accelerated her speed, yet when she got in the center of the middle track she broke into a run and continued north, all the time keeping her eyes on the moving freight train. She had reached the north rail of the main track and was just ready to step over it when the fast passenger from the east, 10 minutes late and coming at the rate of 50 or 60 miles an hour, struck her and hurled her body a distance of 80 or 90 feet toward the other or west end of the depot platform, killing her instantly. She at no time looked eastward, and there is no evidence that she ever was conscious of the approach of the train that struck her. There is no question but that the train was going at great speed, as the engineer himself (a witness for defendant) says he was going 50 miles an hour. All of the evidence is that the train approached and crossed Ogden street without slackening speed, and the evidence in plaintiff's behalf, from various disinterested sources, is that no bell was rung nor whistle sounded after the station signal was given "over the hill about a mile from town," except a whistle blown at or shortly before the instant it struck her.

The petition contained five charges of negligence, namely:

(1) Failure to perform the statutory duty of ringing the hell while passing through the town and approaching the crossing.

(2) Running the train through the city at a rate of speed in excess of six miles per hour in violation of a city ordinance prescribing that limit.

(3) Common-law negligence in running the train through the city at a highly dangerous and negligent rate of speed.

(4) Obstructing the sidewalk at the crossing of the house track and failing to have a watchman at the crossing to warn pedestriens of the approach of the train.

(5) A violation of the humanitarian rule in that the operatives of said train had time and opportunity to discover the peril of deceased and that she was oblivious thereto in time, by the exercise of ordinary care, to have warned her of the approach of said train by the sounding of the whistle or the ringing of the bell, and thereby to have avoided the injury, but they negligently failed to discover the peril of deceased and negligently failed to sound the whistle or ring the bell after they had discovered, or in the exercise of reasonable care should have discovered, her peril and the fact that she was oblivious to the same. The answer was a general denial coupled with a plea of contributory negligence.

The defendant offered a general demurrer both at the close of plaintiff's evidence and at the close of all the evidence, and now insists that the demurrer should have been sustained. Unquestionably the evidence was more than amply sufficient to support practically all of the charges of negligence on the part of the defendant alleged in the petition. Running a fast passenger train through and over the streets of an incorporated city without ringing the bell was prima Thee negligence under the statute (section 9943, S. 1919). Day v. Missouri, etc., R. Co., 132 Mo. App. 707, 714, 112 S. W. 1019; Roberts v. Wabash R. Co., 113 Mo. App. 8, 9, 87 S. W. 601. It was also negligent to run the train at such an excessive rate of speed in violation of the ordinance on that subject. Stotler v. Chicago, etc., a. Co., 200 Mo. 107, 38 S. W. 509; Kellny v. Missouri Pac. R. Co., 191 Mo. 6?, 13 S. W. 808, 8 L. R. A. 783; Gratiot v. Missouri Pacific R. Co., 118 Mo. 450, 21 S. W. 1094, 16 L. R. A. 189. And, regardless of any ordinance, there was unquestionably common-law negligence in running the train at such a high and dangerous rate of speed through the city and across the streets thereof.

So that, so far as concerns all of the aforesaid charges of negligence except the violation of the humanitarian theory, the question...