Steele v. Kansas City Southern Ry. Co., No. 23223.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDavid E. Blair
Citation257 S.W. 756,302 Mo. 207
PartiesSTEELE v. KANSAS CITY SOUTHERN RY. CO.
Decision Date04 January 1924
Docket NumberNo. 23223.
257 S.W. 756
302 Mo. 207
STEELE
v.
KANSAS CITY SOUTHERN RY. CO.
No. 23223.
Supreme Court of Missouri, in Banc.
January 4, 1924.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Edward B. Steele against the Kansas City Southern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for retrial.

Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for appellant.

Cyrus Crane and Hugh B. Martin, both of Kansas City, for respondent.

DAVID E. BLAIR, J.


This is an action in damages for personal injuries. At the close of plaintiff's evidence the trial court directed a verdict for defendant, and judgment was entered accordingly. After moving unsuccessfully for a new trial, plaintiff appealed. This court has jurisdiction because of the amount claimed in the petition.

The case has had an unusual history. Plaintiff was injured in the year 1910. Suit was filed soon thereafter which, coming on for trial in due course, resulted in a verdict for plaintiff. The trial court set the verdict aside and granted a new trial. From this order plaintiff appealed to this court. The order of the trial court was affirmed and the cause remanded for a new trial. Steele v. Railway, 265 Mo. 97, 175 S. W. 177. Thereafter, the case came on for retrial in the circuit court and plaintiff suffered a nonsuit. Later a new action was begun which resulted as above stated. It is conceded that the pendency of the different suits has avoided the bar of the statute of limitations.

The uncontradicted facts are as follows:

At the time plaintiff was injured, defendant owned and operated a double-track railroad along Second street in Kansas City, Mo., particularly between Walnut street and Grand avenue. Several other railroads also used the same tracks. Second street runs east and west, and Walnut street and Grand avenue run north and south and cross Second street. Ordinarily, west-bound train movements used the north track in said street and east-bound train movements the south track. An industrial spur track, serving the, produce house of Clemons & Co., connected with the north track at or very near Walnut street. This produce house was north of and close to Second street, between Walnut street and Grand avenue.

About 1:30 a. m., October 26, 1910, the plaintiff was found lying or sitting near the north rail of the south main track. One leg had been crushed just below the knee. The foot of the other leg had been partially crushed. The crushed leg was afterwards amputated. Plaintiff testified, and the finding of a shoe cut in two and some mangled flesh and blood there clearly indicates, that plaintiff was injured by the wheels of an engine or car, or both, running over his leg and foot while they were upon the north rail of the north track.

A few minutes before plaintiff was found injured, a locomotive of defendant, being engine No. 60, left three or four cars upon the north track just east of Grand avenue and moved westward along said track past the point of the Clemons spur track, backed into said switch, and coupled onto an empty car. With said car it then pulled out of said spur track upon the north track and moved eastward, pushing said car for the purpose of picking up the cars left standing east of Grand avenue. It was in the course of this last train movement that plaintiff was discovered.

The testimony of plaintiff was to the following effect: He was employed upon the night shift as an inspector in the Kansas City water department. On the day preceding

257 S.W. 757

his injury, he was suffering from a severe headache and took a dose of bromoseltzer for relief. On this particular evening he arrived at the city hall at the usual hour. No calls coming in to disturb him, he slept in his chair until about midnight. He then felt better, but was dizzy and had a "swimming" headache. He then went to a restaurant adjoining a saloon to get some lunch. He denied that he took a drink of liquor there or that he had been drinking during the day.

Shortly after having his lunch and about 1:10 a. m., he walked north two blocks from the city hall to see a man at Second and Main streets. Main street is the first street west of Walnut street. He did not find the man he sought. He then remembered that he had a report of a leaking hydrant at Second street and Grand avenue. He walked east on Second street between defendant's north and south tracks, and within six or seven inches of the south rail of the north track, until he reached Walnut street. There he encountered some sort of obstruction between the tracks and stepped over between the rails of the north track and continued walking there slowly toward Grand avenue until he was knocked down and run over by an engine and freight car or cars moving eastward upon the north track. The point of injury was about 200 feet east of Walnut and 100 feet west of Grand.

Plaintiff claims that he had walked from Main to Walnut close to the north track to avoid danger of injury from east-bound train movements upon the south track and expected train movements upon the north track, if any, to approach him from the east, in which direction he was facing. He did not look back when he stepped between the rails of the north track at Walnut or after that as he proceeded toward Grand avenue. He heard no signal of any kind before he was struck. He saw no light, nor did he hear the noise of any train movement behind him. He heard trains moving upon tracks farther north, apparently about one-fourth of a mile away. After plaintiff passed Walnut street, he saw an engine and freight car pulling out of the Clemons spur track. The first he knew of the approach of the train which struck him was when he was struck by it. After he was run over he attempted to crawl toward the north, but could not get up the embankment there. He then crawled south across the north track almost or quite to the south track. The next thing he knew men with lanterns were about him. They asked him where he worked and other questions. Some one gave him a drink of whisky. He soon lost consciousness again.

Second street was an opened public street of said city. It was used by people on foot at all times of the day and night. There was no light on the freight car, although the switch engine had lights on each end. None of the train crew was riding the freight car to keep a lookout in the direction it was being pushed. One of the switchmen stood on the running board of the engine behind the freight car. Another switchman, after uncoupling the freight car on Clemons spur, walked west along the platform of the produce house down the east steps and thus to Grand avenue, where he waited for the purpose of coupling the approaching freight car to those left standing there. He saw no one on the track. There was evidence tending to show that the engine and car of defendant could have been stopped within a very few feet after application of the brakes.

It was developed by defendant upon cross-examination of witnesses, put on the stand by plaintiff, that, as defendant's engine No. 60, pushing the freight car, backed eastward, the fireman called the attention of the engineer to something on the ground south of the engine. The fireman got off with a torch and found plaintiff there. The engine was backed up about 25 feet east of the plaintiff, and the engineer and switchmen returned to the point where plaintiff was found. One or more of them testified that plaintiff was intoxicated; that no one gave him any whisky; that the plaintiff told them several trains had passed since he was struck and injured; that the blood on his face was dried, as were also a few little spots of blood where he was found; that Plaintiff's wounds were not bleeding when he was found. They also testified that they examined the north wheels of defendant's engine and freight car and discovered no blood whatever thereon.

One Bickford, employed by the street car company, testified that he was sitting at the watchman's shanty talking to defendant's watchman at Second and Grand; that he saw the locomotive and freight car pull out of the Clemons spur track; that the whistle was sounded by the engine and he walked out with the switchman while he flagged the crossing. He said the engine and freight car backed to a point east of Grand avenue. After it passed, he looked to the west and saw something "flopping" or crawling around at about the point where plaintiff was afterward found. He called the attention of the watchman to it. Thinking that he had seen one of the dogs of the neighborhood, he attached no importance to it until after he heard of plaintiff's injury.

While the weight of Bickford's testimony was for the jury, it would seem that the fact that he left Second street and Grand avenue soon afterwards and about an hour later returned, without witnessing the excitement attending the discovery of the plaintiff or hearing of his injury until hours later, while all the other testimony shows that plaintiff was discovered almost immediately after defendant's engine No. 60 and car...

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41 practice notes
  • McNatt v. Wabash Ry. Co., No. 34916.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1937
    ...without otherwise being disputed at the later trial, and even if inconsistent, are not conclusive upon plaintiff. Steele v. Ry. Co., 302 Mo. 207, 257 S.W. 756; Parrent v. Railroad Co., 334 Mo. 1202, 70 S.W. (2d) 1068; Bloecher v. Duerbeck, 92 S.W. (2d) 681; Kinghorn v. Railroad Co., 47 Fed.......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...v. Abernathy Furniture Co., supra; Holzemer v. Metropolitan St. R. Co., 261 Mo. 379, 169 S.W. 102; Steele v. Kansas City Southern R. Co., 302 Mo. 207, 257 S.W. In Doyle v. St. Louis Merchants' Bridge Terminal R. Co., 326 Mo. 425, 31 S.W. (2d) 1010, l.c. 1012, the Supreme Court, in affirming......
  • Armstrong v. Mobile & Ohio Railroad Co., No. 30308.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...testimony at the trial and his prior written statement. Gibbons v. Wells, 293 S.W. 91; Rigley v. Pryor, 290 Mo. 20; Steele v. Ry. Co., 302 Mo. 207. (e) The evidence for respondent shows that the appellant's servants backed engine No. 455 along the cinder car track, toward the place where th......
  • Grubbs v. Public Service Co., No. 29333.
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1931
    ...peremptory instruction we must accept as true the evidence which tends to support the verdict (Steele v. K.C. Southern Ry. Co., 302 Mo. 207, 216, 257 S.W. 756), and in passing upon it we are required to make every inference of fact which a jury might, with any degree of propriety, have infe......
  • Request a trial to view additional results
41 cases
  • McNatt v. Wabash Ry. Co., No. 34916.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1937
    ...without otherwise being disputed at the later trial, and even if inconsistent, are not conclusive upon plaintiff. Steele v. Ry. Co., 302 Mo. 207, 257 S.W. 756; Parrent v. Railroad Co., 334 Mo. 1202, 70 S.W. (2d) 1068; Bloecher v. Duerbeck, 92 S.W. (2d) 681; Kinghorn v. Railroad Co., 47 Fed.......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...v. Abernathy Furniture Co., supra; Holzemer v. Metropolitan St. R. Co., 261 Mo. 379, 169 S.W. 102; Steele v. Kansas City Southern R. Co., 302 Mo. 207, 257 S.W. In Doyle v. St. Louis Merchants' Bridge Terminal R. Co., 326 Mo. 425, 31 S.W. (2d) 1010, l.c. 1012, the Supreme Court, in affirming......
  • Armstrong v. Mobile & Ohio Railroad Co., No. 30308.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...testimony at the trial and his prior written statement. Gibbons v. Wells, 293 S.W. 91; Rigley v. Pryor, 290 Mo. 20; Steele v. Ry. Co., 302 Mo. 207. (e) The evidence for respondent shows that the appellant's servants backed engine No. 455 along the cinder car track, toward the place where th......
  • Grubbs v. Public Service Co., No. 29333.
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1931
    ...peremptory instruction we must accept as true the evidence which tends to support the verdict (Steele v. K.C. Southern Ry. Co., 302 Mo. 207, 216, 257 S.W. 756), and in passing upon it we are required to make every inference of fact which a jury might, with any degree of propriety, have infe......
  • Request a trial to view additional results

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