Titus v. Delano

• Decision Date: 01 March 1919
• Docket Number: No. 19402.,19402.
• Citation: 210 S.W. 44
• Parties: TITUS v. DELANO et al.
• Court: Missouri Supreme Court

210 S.W. 44

TITUS v. DELANO et al.

No. 19402.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

Appeal from Circuit Court, Adair County; Charles M. Stewart, Judge.

Action by Benjamin Titus, administrator of the estate of Silas Titus, deceased, against Frederic A. Delano and others, receivers of the Wabash Railroad Company. Judgment for plaintiff, and defendants appeal. Judgment reversed, and cause remanded.

J. L. Minnis and N. S. Brown, both of St. Louis, and Higbee & Mills, of Lancaster, for appellants.

J. E. Rieger and Campbell & Ellison, all of Kirksville, for respondent.

BLAIR, P. J.

This cause was certified here because one of the judges of the Kansas City Court of Appeals deemed the majority opinion in conflict with certain decisions of this court.

In the view we take of the case, a full statement of the facts is not necessary. The cause was tried on the humanitarian doctrine. Titus was struck and killed by a Wabash train in the city of Kirksville at a place on the track where the evidence tended to show it was used in such manner by the public as to require a lookout to be kept. The engineer testified the headlight enabled him to see the track for 300 feet and the train could have been stopped in 60 feet. There was judgment for $2,000.

I. The petition alleges that Silas Titus was "an unmarried man and left surviving him no minor child or children, neither natural born nor adopted." It does not allege he left surviving him any child or children or next of kin competent to take under him under the law of descents in this state. It has been decided by this court and the Courts of Appeals that such a petition states no cause of action. Kirk, Adm'r, v. Railroad, 265 Mo. loc. cit. 344, 177 S. W. 592, and cases cited; Lyons v. Railway, 190 S. W. 859, and cases cited; Johnson v. Mining Co., 171 Mo. App. 134, 156 S. W. 33. It is suggested the evidence tends to show Titus left a son, and that the defect in the petition might be cured thereby. The same contention was presented in the motion for rehearing in Lyons v. Railway, supra, and overruled. Further, this view could not save the judgment in this case. The question whether Titus left next of kin was an issuable fact. Respondent's instructions authorized a verdict without a finding on the point. This, alone, would preclude an affirmance.

II. In the brief it seems to be contended there was no showing of such user of the track at the place of injury as to require a lookout to be kept. There is direct testimony that the track at the place in question was used "morning, noon, and night," as one witness put it; and that it was used to the same extent as a sidewalk in the street. The fireman testified he knew of the user by pedestrians and was on the lookout for that reason. Both Court of Appeals opinions decided this question against appellant.

III. It is contended the law does not require railroad employés to be on the lookout for persons sitting or lying on or beside the track, even at a place at which a lookout must be kept for persons walking on the track. The consequence of a continued use of the track by the public is that a lookout must be kept. If the requisite lookout would disclose the presence of a man in a situation of danger, it is not, so far as concerns the question of law, very important what position he is in. It is quite important on the question of fact whether he would have been discovered. In Murphy v. Railroad, 228 Mo. 56, 128 S. W. 481, Murphy was sitting beside the track in almost exactly the same position some of the evidence tends to show Titus to have taken a few minutes before he was struck.

IV...