Steele v. Kansas City Southern Railway Company

• Court: Missouri Supreme Court
• Writing for the Court: FARIS, P. J.
• Citation: Steele v. Kansas City Southern Railway Company, 175 S.W. 177, 265 Mo. 97 (Mo. 1915)
• Decision Date: 12 April 1915
• Parties: EDWARD B. STEELE, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY

175 S.W. 177

265 Mo. 97

EDWARD B. STEELE, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY

Supreme Court of Missouri, Second Division

April 12, 1915

Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.

Affirmed.

Kimbrell & White and Martin J. O'Donnell for appellant.

(1) It was proper to submit the case to the jury on the evidence supporting the allegation that defendant's servants saw or by the exercise of ordinary care could have seen plaintiff in a position of peril in time to have avoided injury to plaintiff by stopping the train. Scullin v Railroad, 184 Mo. 695. (2) It was proper 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 at a place where, to defendant's knowledge pedestrians were constantly passing, without ringing the bell or giving other warning. R. S. 1909, sec. 3140; Lamb v Railroad, 147 Mo. 171; Reed v. Railroad, 107 Mo.App. 238; Lueders v. Railroad, 253 Mo. 97; Beach on Cont. Neg., sec. 95; Petty v. Railroad, 88 Mo. 319; Johnson v. Railroad, 77 Mo. 546; Donahue v. Railroad, 91 Mo. 364; Groom v. Kavanaugh, 97 Mo.App. 372; Longan v. Railroad, 72 Mo. 398; Kerry v. Railroad, 105 Mo. 288; Zander v. Transit Co., 206 Mo. 466; Peterson v. Transit Co., 199 Mo. 340; Kirlen v. Railroad, 216 Mo. 160; Felver v. Railroad, 216 Mo. 212; Kame v. Railroad, 254 Mo. 190. (3) It was proper 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 lamp, headlight or lantern conspicuously placed in front of the same facing the direction in which the engine and cars were moving. Weller v. Railroad, 120 Mo. 635; Weller v. Railroad, 164 Mo. 180. (4) It was proper to submit the case to the jury on the evidence supporting the allegation that defendant failed to keep a proper lookout for persons who might be upon or approaching the track on which the train was approaching. Sluder v. Transit Co., 189 Mo. 136; Frick v. Railroad, 75 Mo. 609.

Cyrus Crane and George J. Mersereau for respondent.

(1) Under plaintiff's testimony on cross-examination there was no case. Moore v. Railroad, 176 Mo. 544; Newton v. Railroad, 153 Mo.App. 167. This evidence was binding even though there was an attempt to change it. Bond v. Railroad, 110 Mo.App. 136; Shanahan v. Railroad, 109 Mo.App. 233; Sepetowsky v. Railroad, 102 Mo.App. 122; Ephland v. Railroad, 57 Mo.App. 162, 71 Mo.App. 598, 137 Mo. 187; Thorp v. Railroad, 89 Mo. 657; Shirts v. Overjohn, 60 Mo. 308; State v. Brooks, 99 Mo. 143; Feary v. Railroad, 162 Mo. 160; Smith v. Railroad, 184 F. 387; Cogan v. Railroad, 101 Mo.App. 189; Pratt v. Conway, 148 Mo. 299; St. Louis v. Babcock, 156 Mo. 157; Fiedler v. Bambrick, 135 Mo.App. 305; Tootle v. Buckingham, 190 Mo. 195; Oglesby v. Railroad, 177 Mo. 295. (2) Under plaintiff's entire testimony he was guilty of negligence and hence the submission was erroneous. White's Supp. to Thompson on Neg., secs. 1638, 1639 and notes; Green v. Railroad, 143 Cal. 31; McAuliff v. Railroad, 83 N.Y.S. 200; Winter v. Railroad, 66 N. J. L. 677. (3) There was no case under humanitarian rule. Hawkins v. Railroad, 135 Mo.App. 535; Moore v. Railroad, 176 Mo. 544; Markowitz v. Railroad, 186 Mo. 359; Baring v. Railroad, 194 Mo. 541. (4) Because of his contradictory statements the court had a right to ignore plaintiff's testimony; with that excluded there was a total failure of proof. Whether excluded or not the verdict was against the weight of the evidence -- against right and fairness. It was the court's duty to set it aside on that account, on the same principle that a verdict against the weight of the evidence should be set aside by any trial court. Reid v. Insurance Co., 58 Mo. 429; State v. Young, 119 Mo. 526; Lawson v. Mills, 130 Mo. 172; Reid v. Lloyd, 61 Mo.App. 649; Young v. Ruhwedel, 119 Mo.App. 244; Noble v. Kansas City, 222 Mo. 126; Haven v. Railroad, 155 Mo. 216.

OPINION

FARIS, P. J.

Action for personal injuries. Plaintiff below, who is appellant here, obtained a verdict, which, upon motion of defendant, was set aside and a new trial granted by the court. From this order granting a new trial plaintiff appeals. The ground for the granting of a new trial was that the court had erred in refusing to sustain defendant's demurrer to the evidence and in refusing to give a peremptory instruction requested by defendant that the finding of the jury should be for defendant.

The facts in the case so far as they are pertinent to the questions raised upon this appeal are about as follows:

Plaintiff was, on and about the night of October 25, 1910, employed in the water department of Kansas City as an emergency inspector. His duties as such required him to work at night. About midnight of October 25th, or shortly thereafter on the morning of October 26th, plaintiff had started to walk down Second street from Walnut street to Grand avenue, for the purpose of inspecting a hydrant somewhere near Second and Grand, which he says, had been reported on the preceding evening to be leaking. There are on said Second street a number of railroad tracks, which either belong to or are used by the defendant. It is immaterial as to the ownership, though the proof shows that these tracks are used by some three or four other railroads besides the defendant here. Among other tracks on this street there are what are called in the record the "north main track," on which track plaintiff was hurt, and the "south main track." These tracks on Second street run in an easterly-and-westerly direction. In the neighborhood, and north of the north main track, there is a spur track leading to some mercantile establishments situate along Second street; particularly one leading to the premises of Clemons & Company, who appear to be wholesale dealers in fruit and produce. The spur track leading to the Clemons premises joins the north main track by a switch somewhere near Walnut street. The injury to plaintiff occurred on Second street and between Walnut street and Grand avenue. There is another switch connecting the north main track with another spur which leads out to other mercantile establishments in the neighborhood. These two switches, both of which connect with the north main track, are about 200 feet apart. Plaintiff was struck and injured about 100 feet west of Grand avenue, and therefore about 200 feet from Walnut street. No witness saw him hit nor did anyone see him upon the railroad track at or near where he was hit, until he was found lying between the north and south main line tracks very seriously injured. The case turns therefore wholly upon the testimony of plaintiff himself and makes it necessary for us to rely upon his statement, a large part of which, to illustrate the subjoined discussion, we are compelled to set out in this statement in haec verba.

Plaintiff testifying for himself in substance said, that he reached the city hall on the evening of October 25th, somewhere about five o'clock; that he was suffering from a very severe headache, and after having taken some bromo-seltzer at a neighboring drug store, went into the city hall, sat down in a chair there and slept until twelve o'clock; that he then ate supper at a neighboring restaurant and started to walk to Second and Main streets to see some person there with whom he had an engagement; that he did not find this person in at the midnight hour at which he called, and thereupon he walked east on Second street, toward the corner of Second and Grand avenue, with a view of examining the hydrant which we mention above. His testimony is important, and since the whole case turns upon it, we quote it:

"Q. Now, as you went from Second and Main to Second and Grand what route did you go? A. I went east from Second and Main down the tracks.

"Q. Down what tracks? A. They call them the Southern there; the north track I went down.

"Q. The north track of the Southern Railway Company? A. Yes, sir.

"Q. How far did you go before something happened to you? A. Oh, I was, I suppose, a hundred feet or more from Grand avenue this way, west -- more than that.

"Q. A hundred feet or so west of Grand? A Yes, west of Grand.

"Q. Now at that time Mr. Steele, what part of the track were you walking on? A. I was walking on the north track.

"Q. What part of the north track would you say? A. What part of it?

"Q. Yes, nearer the north rail or nearer the south rail? A. Nearer the north rail.

"Q. But between the rails? A. Yes, sir.

"Q. Say when you were between Walnut and Grand any time, did you notice any switch engine any-where? A. I did, yes.

"Q. Where was it? A. North of me on the private switch there; I suppose it's called a private switch -- Clemons's.

"Q. On the Clemon's switch? A. Yes, sir.

"Q. Which way was the engine headed? A. Headed west.

"Q. The engine was headed west? A. Yes.

"Q. How were you walking, leisurely? A. Just leisurely, yes, sir.

"Q. Just walking along slowly. What was the first you knew of the approach of any car or engine or train behind you? A. Well, I don't know of any, only I heard them down on the Pacific or Chicago & Alton, whistling down there, blowing steam off.

"Q. Tell what happened to you then? A. I don't know, it just hit me in the back here (indicating).

"Q. What hit you? I suppose the car hit me.

"Q. That's what I want you to tell this jury about. They don't know about it, you know. You were walking along there and a car hit you? A. Yes, sir.

"Q. From which direction was it coming? A. It was coming east.

"Q. From behind you? A. Yes, sir.

"Q. And what effect did it have upon you? A. Knocked me down and ran over my leg and I scrambled to get out of the road.

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