Sites v. Knott

• Decision Date: 20 June 1906
• Parties: LAURA A. SITES v. STUART R. KNOTT and EDWARD F. SWINNEY, Receivers of KANSAS CITY SUBURBAN BELT RAILROAD COMPANY, Appellants
• Court: Missouri Supreme Court

96 S.W. 206

197 Mo. 684

LAURA A. SITES v. STUART R. KNOTT and EDWARD F. SWINNEY, Receivers of KANSAS CITY SUBURBAN BELT RAILROAD COMPANY, Appellants

Supreme Court of Missouri

June 20, 1906

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed and remanded.

Samuel W. Moore and Cyrus Crane for appellants.

(1) The demurrer should have been sustained. (a) Because, under the undisputed facts, there was no negligence on defendant's part and no right of recovery. Stillson v. Railroad, 67 Mo. 676; Gurley v. Railroad, 104 Mo. 212, 122 Mo 141; Schmitz v. Railroad, 119 Mo. 256, 46 Mo.App 380; Wilkinson v. Railroad, 101 Mo. 63. (b) Because the deceased was guilty of gross negligence, causing his injury, and there was neither allegation nor proof of recklessness, wilfullness or wantonness on defendant's part. 1. Negligence of the act of deceased: Gurley v Railroad, 104 Mo. 211; Stillson v. Railroad, 67 Mo. 676; Schmitz v. Railroad, 119 Mo. 256; Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad, 105 Mo. 399; Bean v. Liability Co., 50 Mo.App. 459; Thompson v. Railroad, 93 Mo.App. 549; Bird v. Railroad, 48 N.W. 691; Howard v. Railroad, 21 P. 267. 2. No recklessness, wilfullness or wantonness on the part of defendant's employees: Nelson v. Railroad, 68 Mo. 593; Yarnall v. Railroad, 75 Mo. 575; Powell v. Railroad, 76 Mo. 81; Dlauhi v. Railroad, 105 Mo. 645; Maxey v. Railroad, 113 Mo. 1; Loring v. Railroad, 128 Mo. 349; Vogg v. Railroad, 138 Mo. 172; Tanner v. Railroad, 161 Mo. 497; Sharp v. Railroad, 161 Mo. 214; Zumault v. Railroad, 175 Mo. 290; Davies v. Railroad, 159 Mo. 9; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 1. (c) Because the case alleged in the petition was not proven. 1. There was no proof of the specific negligence charged in the petition. Gurley v. Railroad, 93 Mo. 445; Bartley v. Railroad, 148 Mo. 139; McManamee v. Railroad, 145 Mo. 440; Hite v. Railroad, 130 Mo. 132. 2. There was no testimony that no warning was given. Gurley v. Railroad, 93 Mo. 445, 104 Mo. 211. 3. In the absence of evidence to the contrary, the presumption is that the trainmen did their duty. 21 Am. and Eng. Ency. Law, 510; Saunders v. Co., 147 Mo. 428; Jewett v. Railroad, 50 Mo.App. 547. 4. There was no testimony that the cars were separated so as to allow foot passengers to pass between them. Such proof was essential to plaintiff's recovery. Gurley v. Railroad, 104 Mo. 211. 5. There was no testimony that other persons were passing through this opening with the knowledge of defendants. 6. There was not a word of testimony that defendant's employees saw or "could have seen, deceased in a place of danger." (2) The court erred in the instruction given on plaintiff's behalf. There was no evidence that deceased was or could have been seen in a position of peril in time to have averted the injury. Moody v. Railroad, 68 Mo. 470; Frick v. Railroad, 75 Mo. 608; Malloy v. Railroad, 84 Mo. 270; Boyd v. Railroad, 105 Mo. 371; Holden v. Railroad, 177 Mo. 456; Guyer v. Railroad, 174 Mo. 349; Van Bach v. Railroad, 171 Mo. 347; Thompson v. Railroad, 93 Mo.App. 554; Reno v. Railroad, 79 S.W. 464; Davies v. Railroad, 159 Mo. 1; McGauley v. Railroad, 79 S.W. 461; Evans v. Railroad, 178 Mo. 517; Roenfeldt v. Railroad, 79 S.W. 706.

A. N. Adams and Scarritt, Griffith & Jones for respondent.

(1) The theory of plaintiff's petition and of the single instruction which was asked on her behalf is abundantly supported by the testimony. This is sufficient to sustain the verdict. (2) The place where plaintiff's husband was killed had been used as a quasipublic crossing for twenty-one years. (3) It is shown by the testimony that the company further recognized the place where plaintiff's husband was killed as a crossing, by generally leaving an opening between its cars at that point. (4) The crossing upon which plaintiff's husband was killed was the only crossing between Gillis street and Lydia avenue, a distance of over a quarter of a mile. (5) That the collision was caused by the switch engine and that no warning was given of its approach, is not left in doubt by the testimony. (6) The testimony overwhelmingly establishes the negligence of defendants, and brings the case clearly within the principles of law laid down by this court, applicable to the circumstances of this case. Easley v. Railroad, 113 Mo. 243; LeMay v. Railroad, 105 Mo. 370; Fiedler v. Railroad, 107 Mo. 651; Schmitz v. Railroad, 119 Mo. 272; Brown v. Railroad, 50 Mo. 467; Hanlon v. Railroad, 104 Mo. 390; Hicks v. Railroad, 64 Mo. 439; Frick v. Railroad, 75 Mo. 609; Holden v. Railroad, 177 Mo. 472. (7) There was sufficient evidence to submit to the jury the question as to whether defendants' agents in charge of the switch engine could, by the exercise of ordinary care, have seen plaintiff's husband on the crossing and attempting to go over the tracks, and avoided the injury by checking the speed of the engine. Thompson v. Railroad, 93 Mo.App. 553; Hanlon v. Railroad, 104 Mo. 381; Klockenbrink v. Railroad, 72 S.W. 902; Bunyan v. Railroad, 127 Mo. 13. (8) Plaintiff's husband was not guilty of contributory negligence as a matter of law under the facts and circumstances of this case. Jennings v. Railroad, 112 Mo. 275; Nichols, Admr., v. Railroad (Va.), 5 S.E. 171.

FOX, J Graves, J., not sitting.

OPINION

In Banc

FOX, J.

-- This cause is here upon appeal by the defendants from a judgment of the circuit court of Jackson county, Missouri. This is an action brought by the widow of William R. Sites to recover the statutory penalty on account of the death of her husband, who was killed on September 6, 1901, at about 4 o'clock in the afternoon, by being crushed between the drawheads of two freight cars in the yards of the Chicago & Alton railroad company, located in what is called East Bottoms in Kansas City, Missouri. Deceased was a mail carrier and had been on the same route for two months prior to his death, crossing at or near the point where he met his death, three times a day. That portion of the Alton yards in question lies between Gillis street on the west and Lydia avenue on the east, a distance of a little over a quarter of a mile. Throughout this distance the yards are not intersected by cross-streets on account of the high bluff ranging from 20 to 50 feet in height on the south, which begins just west of the gas works at Gillis street and extends east nearly to Lydia avenue. Between this bluff and the south side of the tracks are four small houses; the one farthest west belongs to Mrs. Rodes; just across the tracks to the north is the Zenith mills; between the Rodes house and this mill is the point of the accident. East of this mill lies the property of the Bolen Coal Company. Within this space and north of the tracks there are also some other business houses, offices and the residences of three or four other families. Between 10 and 150 feet east of the Rodes cottage, in the gulch or draw in the bluff, is located a spring, which is frequently used by people in the neighborhood. At the point of the accident, between the Rodes cottage and the Zenith mills, the Alton's tracks are arranged as follows, beginning on the south: First, the "mud track" (used for storing cars); second, the Kansas City Suburban Belt receiving track. These two tracks are connected by a switch at the west end of the Rodes cottage. Third and fourth, Alton main tracks (kept free to permit passage of trains). Fifth, the Kansas City Suburban Belt delivering tracks. Sixth, Zenith mill track. (Tracks five and six are connected at the point marked "X" on the plat). The location of these tracks is fully shown on the plat. The west end of these yards in question near Gillis street is the connection of the Chicago & Alton and the Suburban Belt -- that is, the point where deliveries of cars are made to and from one road to the other. The Alton sets all cars which it has destined for the Belt on track 2, and the Belt Company places its cars for the Alton on track 5. Each road gets the cars thus set to it at certain intervals, suiting its own time and convenience.

The negligence complained of in this action is embraced in the following part of the petition filed by the plaintiff, which is as follows:

"That defendants are and at all times herein referred to are and have been engaged in the business of running, conducting managing and operating all of the railroad property, locomotives, cars, trains, and rolling stock of the said railroad heretofore and now commonly known as the railroad of The Kansas City Suburban Belt Railroad Company, and that part of the said business of the defendants is and was during all of said period to transfer cars of various railroad companies from one track to another and from one locality to another in Kansas City, Missouri, on tracks owned or controlled by them, or other persons or corporations, and on and from those certain railroad tracks extending in an easterly and westerly direction across Troost avenue south of the Zenith mills, near First street, in said city, which said Troost avenue is a public street in said city, which said place is a populous and thickly-settled locality in the vicinity of which are many dwellings, mills and factories, and that at or near the intersection of the west line of Troost avenue with said tracks, a great number of people are and were at the time herein referred to and for a long time prior thereto accustomed to and did daily cross the said tracks, of all of which facts defendants through their servants and agents in charge of their said railroad, engines and cars, had notice; that at all times herein referred to the said William R. Sites, while engaged in the service of the United States Government in...