Steele v. Kansas City Southern Ry. Co.

Citation257 S.W. 756,302 Mo. 207
Decision Date04 January 1924
Docket NumberNo. 23223.,23223.
PartiesSTEELE v. KANSAS CITY SOUTHERN RY. CO.
CourtMissouri Supreme Court
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...

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