Wasmer v. The Missouri Pacific Railway Company
| Decision Date | 03 June 1912 |
| Citation | 148 S.W. 155,166 Mo.App. 215 |
| Parties | DELBERT WASMER, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
Martin S. Clardy and Edward J. White for appellant.
H. J Latshaw and Jesse E. James for respondent.
This is a suit to recover damages the plaintiff alleges he sustained by reason of an injury inflicted upon his wife by the negligence of the defendant. The plaintiff's wife was struck and injured by one of defendant's freight trains on the 17th day of March, 1908, at or near Crystal avenue in Kansas City, Missouri.
The plaintiff in his petition alleges in one count that the injury was the result of defendant's failure to comply with an ordinance of the city regulating the speed of trains passing over its streets. In the second count of his petition the plaintiff seeks to recover on the humanitarian theory that defendant's engineer saw or could have seen his wife on the defendant's track in time to have avoided injuring her had he exercised ordinary diligence.
The cause was submitted to the jury under the humanitarian doctrine. The jury returned a verdict for plaintiff for $ 3750. From the judgment rendered on the verdict defendant appealed.
The plaintiff's wife was struck at a grade crossing of Fifteenth street and Crystal avenue. Fifteenth street is one of the chief thoroughfares of Kansas City and is much used by vehicles and pedestrians, and trains are constantly passing over the crossing where the injury occurred. The defendant's train was going north. Plaintiff's wife was approaching the defendant's tracks at the crossing on the sidewalk on the north side of Fifteenth street. At a point about seventy feet west of the main track where she was injured she spoke to a Mr. Cassell as she passed him, who was going in the same direction, but had stopped to talk to some one. Cassell, who was a witness in the case, testified that she continued on her walk and when he last saw her she was from five to ten feet from the defendant's main track. She was struck by the engine and knocked to the east side of the track. In her struggle she came in contact with the train and was struck the second time.
A witness by the name of Glasscock testified that the train in question, when he first saw it, was six or eight hundred yards down the track. It seems that just then he went into a water closet and when he came out he noticed the engine going by--the engineer was looking back with his hand on the throttle. He then saw the woman, plaintiff's wife, lying close to the track; that he started after her, but just before he reached her she was "coming to--flounced around" and the "grease box of the wheels struck her;" that he grabbed her by the foot and pulled her away. It was the opinion of this witness that when he first saw the train coming its rate of speed was eight or ten miles an hour, that it was the opinion of this and all the other witnesses that at the time it struck plaintiff's wife it was going at the rate of from eighteen to thirty miles an hour. All the other witnesses also testified that the train could be seen for a long distance, while approaching by a person near the track. The plaintiff's wife seems to have been struck after she had gotten nearly across the tracks, as she was found on the east side. It was shown that there was a station near the point in controversy, and that the train gave the whistle as it approached it. But the evidence went to show that there was no signal given just before the plaintiff's wife was struck; and that there was no slackening of the speed of the train.
The evidence showed that the speed of the train could have been slackened, at the rate of speed it was going, in fifty feet and reduced to one-half its speed in 150 feet. Cassel stated that he did not attempt to pass before the approaching train because he did not think he had time to do so. Plaintiff's wife, it seems, was in a hurry to get home to her baby. There can be no doubt but what she saw the on-coming train and knew, as every one else did, that it was coming at a somewhat rapid rate of speed. There was no evidence introduced on the part of defendant.
After plaintiff's counsel had made his statement to the jury the defendant moved the court to direct a verdict for it on the ground that, admitting the statement to be true, the plaintiff was not entitled to recover. The court overruled the motion.
During the trial plaintiff introduced his wife, and, over the objection of defendant, offered to prove certain facts pertaining to the manner in which she was injured. She was not allowed to testify.
Numerous errors are assigned by the appellant as grounds for a reversal of the judgment. It is insisted that: "The court should have directed a verdict for defendant on the opening statement of plaintiff's counsel to the jury, for the reason that the plaintiff's counsel in his opening statement to the jury, stated a case of contributory negligence on the part of plaintiff's wife, sufficient to prevent a recovery, and upon the facts stated by plaintiff's counsel, the humanitarian doctrine would not...
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