Stakebake v. Union Pac. R. Co.

• Decision Date: 21 February 1916
• Docket Number: No. 11911.,11911.
• Parties: STAKEBAKE v. UNION PAC. R. CO.
• Court: Missouri Court of Appeals

185 S.W. 1166

STAKEBAKE v. UNION PAC. R. CO.

No. 11911.

Kansas City Court of Appeals. Missouri.

February 21, 1916.

Rehearing Denied April 3, 1916.

Motion to Transfer to Supreme Court Denied May 1, 1916.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by Oliver K. Stakebake against the Union Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. W. Blair, of Topeka, Kan., and Watson, Gage & Watson, of Kansas City, for appellant. L. A. Laughlin and W. O. Cardwell, both of Kansas City, for respondent.

JOHNSON, J.

While alighting at Chapman, Kan., from a train on which he was riding as a passenger, plaintiff received personal injuries which he alleges were caused by negligence of defendant in starting the train with a sudden and violent jerk. The answer is a general denial and a plea of contributory negligence. No law of Kansas was pleaded either in the petition or answer, and the issues made by the pleadings and evidence must be governed by the laws and juridical rules and policies of this state. Ham v. Railroad, 149 Mo. App. loc. cit. 207, 130 S. W. 407; Hazelett v. Woodruff, 150 Mo. 534, 51 S. W. 1048; Clark v. Barnes, 58 Mo. App. 667; Banchor v. Gregory, 9 Mo. App. 102; McDonald v. Life Ass'n, 154 Mo. 618, 55 S. W. 999. When an action or defense rests immediately upon a foreign statute, such statute is a substantive fact which must be pleaded. Ham v. Railroad, supra.

The court erroneously received in evidence a statute of Kansas introduced by defendant which, in regulating the transportation of passengers on freight trains, provides "that on such trains the railroad companies shall only be liable for their gross negligence." Since this statute was not pleaded, it cannot be considered as affecting the issue of defendant's negligence, and will be ignored in our discussion of the case.

Plaintiff prevailed in the circuit court, where he recovered a judgment for $2,000, and the cause is before us on the appeal of defendant, whose principal contention is that the case should not have been submitted to the jury, for the reason that the evidence shows that the injury was not caused in whole or in part by any negligence of defendant, and that plaintiff was guilty in law of contributory negligence. The facts essential to a consideration of these questions may be stated as follows: Plaintiff, a commercial traveler, lived and had his business headquarters at Junction City, Kan., a division station on defendant's railroad, and was well acquainted with the trains running in and out of that station and their scheduled times of arrival and departure. In the morning of December 12, 1911, he went to the station and purchased a ticket to Chapman, the second station west of Junction City, intending to board a mixed train scheduled to leave at 5:25 a. m. and known as the "Solomon branch" train. This was a regular train numbered 165 which ran west from Junction City, where it was made up, through Chapman, on the main line, to the junction point, where it diverged to the "Solomon branch" road. A regular through freight train also made up in the yards at Junction City and called "No. 157" was scheduled to leave at 5:15 a. m. — 10 minutes before No. 165, and to run west on the main line to Salina without stopping at Chapman or at any other intermediate station. It was not allowed to carry passengers, and plaintiff, with knowledge of this fact, had no intention of boarding it. An east-bound through passenger train on the main line (No. 102) was due to arrive at 5:10 a. m. and to leave at 5:15, and usually train No. 157 started as soon as the passenger train cleared the main track.

Plaintiff purchased his ticket at 5:15, the time for the departure of the through freight train, and in answer to an inquiry he made of the agent about the leaving time that morning of the Solomon branch train was referred to the bulletin board in the station, which had that train posted "5:25 on time." Finding he had 10 minutes to spare, he went across the street and bought cigars, and, returning, observed a west-bound mixed train which he thought was the Solomon train standing on the main track. He walked back 200 feet to a passenger coach which was followed by a caboose, was lighted and heated, and had its doors unlocked. He entered, observed there were no other passengers, comfortably disposed of himself on two seats he turned facing each other, and soon fell asleep. On his way back to the coach he encountered a man with a lantern whom he took to be a trainman, asked him if that were the Solomon train, and received an affirmative answer. He saw no other trainmen, his ticket was not called for, and he slept until the train approached Chapman,...