Steele v. Kansas City Southern Railway Company
| Decision Date | 04 January 1924 |
| Docket Number | 23223 |
| Citation | 257 S.W. 756,302 Mo. 207 |
| Parties | EDWARD J. STEELE, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.
Reversed and remanded.
Kelly, Buchholz, Kimbrell & O'Donnell for appellant.
(1) The court erred in giving defendant's peremptory instruction for the reason that the evidence supported the allegation that plaintiff was in a position of peril near to and on the defendant's north track and that defendant's servants saw or by the exercise of ordinary care could have seen plaintiff in said position of peril, either close to the south rail of the north track or on the north track, in time to have avoided injury to him by stopping the train. Scullen v. Railway, 184 Mo. 695; Rigley v. Pryor, 233 S.W. 828; Dutcher v. Railway, 241 Mo. 137; Morgan v. Railway, 159 Mo. 262; Murphy v. Railway, 228 Mo. 82; Thompson v. Railway, 243 Mo. 191; Taylor v. Railway, 256 Mo. 191; Epstein v. Railway, 197 Mo. 720; Everett v. Railway, 214 Mo. 54. (2) The court erred in refusing to submit the case to the jury on the ground that defendant negligently operated the train over and toward street crossings on a public street in the nighttime at a place where, to the defendant's knowledge, pedestrians were constantly passing, without ringing the bell or giving other warning. R. S. 1909, sec. 3140; Lamb v. Railway, 147 Mo. 171; Reed v. Railway, 107 Mo.App. 238; Lueders v. Railway, 253 Mo. 97; Beach on Cont. Negl., sec. 95; Petty v. Railroad, 88 Mo. 319; Johnson v. Railway, 77 Mo. 546; Donahue v. Railway, 91 Mo. 364; Groom v. Kavanaugh, 97 Mo.App. 372; Longon v. Railway, 72 Mo. 398; Kerry v. Railway, 105 Mo. 288; Zander v. Transit Co., 206 Mo. 466; Peterson v. Transit Co., 199 Mo. 340; Kirlen v. Railway, 216 Mo. 160; Felver v. Railway, 216 Mo. 212; Kame v. Railway, 254 Mo. 190. (3) The court erred in refusing to submit the case to the jury on the evidence supporting the allegation that defendant operated a train backward through Kansas City between sunset and sunrise without having at least one large light, headlight or lantern conspicuously placed on the same facing the direction in which the engine and cars were moving. Weller v. Railway, 120 Mo. 635; Weller v. Railway, 164 Mo. 180. (4) The court erred in giving appellant's peremptory instruction for the reason that the evidence sustained the allegation that defendant failed to keep a proper lookout for persons who might be on or approaching the track upon which the train was approaching. Sluder v. Transit Co., 189 Mo. 136; Frick v. Railway, 75 Mo. 609. (5) The court erred in refusing to admit in evidence the deposition of the plaintiff taken on February 25, 1911, and before the first trial for the reason that when the defendant attempted to impeach the plaintiff's testimony as a witness by showing contradictory statements, it was proper for the plaintiff as a witness to rehabilitate himself by showing that he made statements prior to the first trial which were consistent with his right to recover. Costello v. Kansas City, 280 Mo. 576, 590; Kelley v. American Central Ins. Co., 192 Mo.App. 24; State v. Maggard, 250 Mo. 345, 349; State v. Sharp, 183 Mo. 715.
Cyrus Crane and Hugh E. Martin for respondent.
(1) The ruling of the trial court in directing a verdict for defendant was correct for exactly the same reasons that this court held there was no liability in this case when here on former appeal. Steele v. Railway, 265 Mo. 97. (2) The evidence was wholly insufficient to prove the identity of the train that injured the plaintiff. Trains of various companies operated on the same tracks. Plaintiff attempted to fasten liability on defendant's Engine No. 60 and failed in his proof. He is bound by the theory adopted on the trial. Taylor & Sons Brick Co. v. K. C. Southern Ry. Co., 213 Mo. 715. (3) The humanitarian theory, under the facts of the case is wholly inapplicable. (4) For the same reasons that existed on former appeal in Steele v. Railroad, 265 Mo. 97, the submission to the jury of the case on the question of defendant's negligence, was not permissible. (5) Plaintiff's deposition was inadmissible in evidence.
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.] Thereafter, the case came on for re-trial 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, Missouri, 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 & Company, 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 on to 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 his injury he was suffering from a severe headache and took a dose of bromo-seltzer 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 two hundred feet east of Walnut and one hundred 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 eastbound 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...
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...upon the former trial. Gibbons v. Wells (Mo. App.) 293 S. W. 89; Rigley v. Pryor, 290 Mo. 10, 233 S. W. 828; Steele v. Kansas City Southern R. Co., 302 Mo. 207, 257 S. W. 756. Defendant complains here of the modification of its requested instruction D. By this instruction the defendant soug......