Walker v. Wabash R. Co.

• Decision Date: 22 February 1906
• Citation: 92 S.W. 83,193 Mo. 453
• Parties: WALKER v. WABASH R. CO.
• Court: Missouri Supreme Court

92 S.W. 83

193 Mo. 453

WALKER v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. RAILROADS—ACCIDENT AT CROSSING—DISCOVERED PERIL—EVIDENCE—SUFFICIENCY.

In an action against a railroad company for death caused by a collision at a road crossing, evidence held insufficient to require submission to the jury of the question whether defendant's servants could have stopped the train in time to have avoided the accident after discovering the peril of deceased.

2. REMOVAL OF CAUSES—PROCEEDINGS AFTER REMAND.

Where a case has, on defendant's petition, been transferred to a federal court, and remanded by it to the state court, the acceptance of jurisdiction by the latter does not deprive the defendant of any of its constitutional rights.

3. RAILROADS — CROSSING ACCIDENT — STATUTORY SIGNALS—EVIDENCE—REBUTTAL.

Under Rev. St. 1899, § 1102, providing that crossing signals shall be given by railroad trains 80 rods from the crossing, it is proper, in an action against a railroad company for death caused by a crossing accident, to show, in rebuttal of evidence that the proper signals were given at the whistling post, that the post was nearly 160 rods and not 80 rods from the crossing.

4. APPEAL—PLEADING—EXCEPTIONS.

Where defendant answers over after a motion to strike out an amended petition for departure, and, on appeal, does not show that the motion was overruled and an exception taken, the objection, not only to the amended petition but to a reply referring to the matter in the

amended petition claimed to constitute a departure, is waived.

5. PLEADING — REPLY — CONSTRUCTION AND EFFECT.

Where an amended petition has been filed and an objection to it on the ground that it is a departure from the original petition had been waived by pleading over, a reply which is pertinent to the amended petition is not objectionable on the ground that it in effect amends the original petition.

6. LIMITATION OF ACTIONS — AMENDMENT — NEW CAUSE OF ACTION.

The petition in an action by a father against a railroad company for the killing of plaintiff's minor son in a crossing accident stated the boy's age, the circumstances of the accident, and alleged that deceased's mother had been dead many years. The boy's given name, which was Charles, was, however, erroneously stated to be Elbert, which was the name of plaintiff's stepson, who was involved in the same accident, but was not injured. Held, that under Rev. St. 1899, §§ 657, 659, 672, 676, and 865, requiring liberality in the allowance of amendments, an amended petition correctly stating the name of the deceased boy should not, for the purpose of determining whether the action was barred by the one-year statute of limitations, be regarded as setting up a new cause of action.

7. APPEAL—REVIEW—THEORY OF TRIAL.

A case will be considered on appeal on the same theory on which it was tried.

8. RAILROADS — CROSSING ACCIDENT — CONTRIBUTORY NEGLIGENCE.

A boy conceded to be sui juris and having good eyesight and hearing approached a railroad crossing at a point where the track was visible for several hundred feet, and stopped his team about 50 feet from the track to look and listen. Thereafter he proceeded towards the track with the team at a slow walk, and, though he had been previously warned by his father that it was about train time and also had personal knowledge that this was true, as well as of the direction from which the train would approach, did not again look in that direction until he had driven upon the track, where he was struck by a train running about 60 miles an hour and killed. Held, that he was guilty of contributory negligence, as a matter of law.

Appeal from Circuit Court, Randolph County; John A. Hockaday, Judge.

Action by R. M. Walker against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Geo. S. Grover, for appellant. Willard P. Cave and Aubrey R. Hammett, for respondent.

LAMM, J.

Walker, as surviving parent of a minor son, Charles L. Walker, the issue of a first marriage, seeks to recover of respondent on an amended petition $5,000, damages for negligently killing his said child at a public road crossing on May 1, 1901, in Randolph county. A résumé of the abandoned petition, as well as the trial pleadings, will aid in getting at some of the questions presented here.

Some time in 1902, plaintiff sued for the death of a son named Elbert Walker. Steps were taken by defendant to remove this cause to the United States Circuit Court. When lodged there, it was by that court (for reasons not shown to this court) remanded to the state court. After being so remanded and on May 5, 1903, two years and four days after the cause of action accrued, plaintiff filed an amended petition, in which he sued for the death of a son named Charles L. Walker. The first petition contained a general averment of negligence, with the additional allegation that the death of Elbert Walker was caused by the negligent omission of the statutory crossing signals. The second petition omitted the general charge of negligence, but counted on the negligent omission of the crossing signals, and made the additional charge that defendant's servants, running the locomotive and train, saw the peril of said Charles L. Walker at the crossing, or could have seen his peril by using ordinary care, and could have prevented the death of the boy by using ordinary care after such discovery. Defendant assailed this petition by a motion to strike out, framed on the theory that there was a departure from the original cause of action and not an amendment, and on the theory that the alleged new cause of action was barred by the one-year statute of limitations, Rev. St. 1899, § 2868. What disposition was made of this motion the record does not show, but we assume it was overruled, though neither that fact is shown, nor is exception noted. Be that one way or the other, on the next day defendant answered by a general denial, and by pleading the original petition counting on the death of "Elbert Walker," followed by the averment that plaintiff never had a son named Elbert Walker, and another showing that the amended petition was filed on the 5th of May, 1903, and that the cause of action therein stated was barred by the express terms of section 2868, Rev. St. Mo. 1899, and is a departure from the original petition. The answer further set up the contributory negligence of Charles L. Walker in that he drove upon defendant's track at the public crossing without looking or listening, when by looking he could have seen and by listening he could have heard the approach of defendant's train in time to have remanded away from the track in a place of safety. Averring, furthermore, that plaintiff by negligently permitting his son to drive upon the track in that way had caused his death. Pleading, also, that it is a citizen of Ohio, while plaintiff is a citizen of Missouri, and that the action of the federal court in refusing to hold jurisdiction of the cause had denied the defendant the privilege, right, and immunity claimed by it under the Constitution and laws of the United States, and violated the fourteenth amendment to the Constitution of the United States, and violated section 30, article 2, of the Constitution of the State of Missouri. By reply, plaintiff denied all the allegations of new matter contained in the answer, and, by way of further reply, averred that "by an error of the scrivener" the name of Elbert Walker, as the name of the minor son killed, was inserted in the original petition, while in truth and in fact the true name was Charles L. Walker, and that Elbert Walker and Charles L. Walker are, and were intended to be, one and the same person, and that person's name was Charles L. Walker. Thereupon defendant assailed the new matter pleaded in the reply by a motion to strike out (1) because it was a departure from the cause of action in the original petition; (2) because the new matter constituted an amendment to the original petition not permitted in a reply; and (3) because the new matter is barred by section 2868, supra. This motion was overruled, and defendant duly saved its exceptions.

On the heels of the above ruling a trial was had to a jury, and thereat the following facts were uncovered: Walker's present wife was a widow Peak, who, with herself, brought as a further contribution to Walker's family a minor son named Elbert Peak. It is asserted in appellant's brief that this lad was known as Elbert Walker, but we find no evidence to sustain such contention, and it may be dismissed as a mere plausible conjecture. The Walker family lived in the neighborhood of a coal mine adjacent to the main track of defendant's railroad in Randolph county, at a point between Huntsville and Moberly, which track, barring a slight curve, at the place in hand runs in the general direction of east, and west. The two boys, Charles and Elbert, with their father plied the avocation of hauling timber to said mine. The team used, being old and thin, was correspondingly gentle, slow, and safe. The wagon used was without a bed, was equipped with a frame for timbering purposes and with a platform for carrying tools, and, when unloaded, those riding thereon rode on its forward bolster. The public wagon road runs east and west south of, parallel with, and adjacent to, the railroad, and, at some distance west of said mine, turns north, and thence, between wing-fences leading to cattle guards, with a slight slope up for 50 feet after the turn, approaches and crosses the track. This crossing is the locus in quo. The railroad approaches it from the east on a slight curve. At some distance east there is a cut, and from where the railroad leaves the cut it runs on a slight fill up to and over the crossing. Taking into consideration the curve, cut, fill, the lay of the land, the wing-fences, etc., described in the record, it seems to be substantially established that,...