Weeks v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 15 October 1937
• Docket Number: No. 18758.,18758.
• Parties: LEE E. WEEKS, ADMINISTRATOR, ETC., RESPONDENT, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

109 S.W.2d 374

LEE E. WEEKS, ADMINISTRATOR, ETC., RESPONDENT, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, APPELLANT.

No. 18758.

Kansas City Court of Appeals. Missouri.

October 15, 1937.

Appeal from the Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

REVERSED.

Kennard & Gresham, F.M. Kennard and Walter J. Gresham for respondent.

Cyrus Crane, George J. Mersereau, John N. Monteith, James F. Walsh and Dean Wood for appellant.

SPERRY, C.

This is an action for the wrongful death of one Floyd Snorgrass, brought by the administrator of the estate of the deceased. There was a verdict and judgment in favor of plaintiff in the sum of $1000. Defendant has appealed.

The facts show that deceased. Floyd Snorgrass, was killed about 8:45 P.M. of December 24, 1935, in Kansas City, Kansas, by one of defendant's engines, being operated westerly over one of its track. The engine, a passenger locomotive, had just come from the Union Station in Kansas City, Missouri, and was going to defendant's roundhouse in that part of Kansas City, Kansas, known as Argentine, to be stored. Defendant had a number of tracks running east and west at the point where deceased was struck. There are four main line tracks at that place numbered one to four, beginning at the south and going toward the north. Track Number One is the eastbound passenger track, track Number Two is the westbound passenger track, track Number Three is the eastbound freight track, and track number Four is the westbound freight track. North of these tracks are several switch tracks, referred to as transfer or classification tracks where freight trains are made and broken up and transfers made to and from connecting lines. The main line and switch tracks lay between Metropolitan Avenue, which is at the foot of a bluff to the south, and the Kaw River on the north, and occupy an area of about 175 feet in width. Over these tracks trains were constantly passing back and forth two or more minutes apart.

Just west of the abandoned Fifth Street Bridge, which is about 245 feet west of the point of the collision, and south of the tracks, is a tower about 124 feet in height, referred to as a "flood light" tower, having a number of strong lights thereon with reflectors throwing light toward the east. These lights lighted the track for several thousand feet east and evidently gave a very bright light where deceased was killed, although one of plaintiff's witnesses testified that one could not read a newspaper there.

Deceased and his brother, John Snorgrass, had fishing lines in the Kaw River near the point where deceased was killed and were going to these lines at that time. They lived on the high bluff to the south of the tracks. In going toward the fishing lines they followed a path which led down the hillside on to the tracks. When they reached the bottom of the hill they stepped over the first main line track and paused between that track and track Number Two on account of a long freight train slowly passing toward the east on track Number Three. They were waiting for this train to pass by, the rear of the same being only five or six cars away. Deceased stood at about the end of the ties of track Number Two, which was about 18 inches south of the rail. His brother stood further away from the track and about four or five feet east of him. Both of them continued to look in both directions for the possible approach of trains on track Number Two, and saw none. However, when John Snorgrass last looked toward the east he saw, about four feet from him, a large locomotive running "light," or without any cars attached, coming from the east at a rate of speed of between 40 and 50 miles per hour. It was without a light and gave no signal of its approach. It missed John Snorgrass but struck deceased, resulting in his death. As the locomotive passed either the engineer or the fireman shouted "look out."

One of the contested issues at the trial was whether deceased was a trespasser on defendant's premises. Defendant admits that there was evidence tending to show the existence of a well-defined path coming down the hill and leading up to the track opposite the point where deceased was killed, but insists that there was no path across the tracks; that the evidence shows that people coming down that path and others would pass over the tracks, without regard to paths or walkways because there were none present. Photographs which were introduced in evidence, plaintiff insists, show that the path upon which deceased descended the hill extended over and across the railroad tracks. Defendant insists that these photographs do not show such a path.

It is difficult for us, in looking at the photographs, to determine whether the path extended across the tracks. There is no question but that the photographs show a well-worn dirt path coming down the hill with brush and weeds on both sides of the same. The photographs further show that the path leads to the south rail of the most southerly track. The tracks were laid upon cinders and it might well be that a photograph would not disclose the path across the cinders, even if one were there. At any rate, the path leads right up to the railroad and there was oral testimony, on behalf of the plaintiff, that it led across all of the rails of the tracks and down past a switch shanty next to the river. Regardless of what the photographs may show or fail to show, the jury was at liberty to believe the oral testimony that the path extended across the tracks.

It was defendant's theory at the trial that all of these tracks constituted a switch yard: that there was no well-defined path crossing the same but that there were many paths coming down the hillside toward the tracks; that people using them would spread out and across the tracks at any place that they saw fit, without any definite crossing. There was testimony that there were other paths in the vicinity. However, plaintiff's testimony shows that there were only three paths, one of which was located west of the abandoned Fifth Street Bridge. This bridge was about 245 feet west of where deceased was killed and not in the vicinity. The second path was between the bridge and where deceased was killed but this path had been washed out and was not being used.

The testimony shows that during both the daytime and nighttime a large number of people used the path coming down the hill and crossing the tracks which deceased and his brother were using when the former was killed. These people consisted of fishermen, boat owners, swimmers and pleasure seekers of various kinds. Some of them were employees of the defendant. There were 25 to 30 people making the fishing in the river a business. There was no public crossing over these tracks anywhere in the vicinity. The tracks at the place in question were traversed by people for many years, prior to the casualty in question. Deceased and his brother crossed these tracks sometimes a dozen times a day in connection with their fishing lines. They had lived on the bluff for about two years. According to plaintiff's evidence there was no warning sign present and no other kind of warning given people not to cross the tracks.

There was ample evidence from which the jury could find that defendant's agents and servants knew of the use of the path crossing the tracks at the point in question. In fact, defendant introduced in evidence its "exhibit C" without restriction. It showed a path marked thereon, leading from a point on the "old road," across defendant's right of way, to the south rail of track Number One; and the point of accident as marked on the exhibit showed deceased was struck at a place between the north rail of track Number One and the south rail of track Number Two, in what would have been this path had same been projected across these tracks. Therefore, defendant, from its own evidence, is almost precluded from denying the existence of the path in controversy. [Scotten v. Metropolitan Life Ins. Co., 68 S.W. (2d) 60, l.c. 73, a dissenting opinion which was sustained by the Supreme Court.]

Deceased's brother testified for plaintiff that he "guessed" the distance between the north rail of track Number One and the south rail of track Number Two, the space in which deceased and his brother were standing when the casualty occurred, was about seven and one-half feet; that he didn't measure it; and that he didn't have very good judgment as to distances down there for he did not work there. This evidence is of practically no probative value for it was not substantial evidence on the point. [Carpenter v. Wabash Ry. Co., 71 S.W. (2d) 1071, l.c. 1072, 1073.] A civil engineer testified for defendant that the distance between these tracks was 10 feet; that the overhang of the engine that struck deceased was three feet and a fraction of an inch; that the ends of the ties extended eighteen inches beyond the outside of the rail; that the engine in question was a regular road passenger engine type; and that the overhang of a boxcar is about eighteen inches. In view of the absence of evidence on these points on behalf of plaintiff, of the positive and uncontradicted evidence to the above effect offered by defendant, and of the fact that plaintiff hypothesizes his argument in this court upon the assumption the facts stated in this paragraph are true, we, also, assume same to be true.

Defendant urges that deceased was guilty of contributory negligence as a matter of law, in taking a stand so close to the track as to be struck by a passing train. To this contention plaintiff answers, first, that defendant's agents were guilty of "willful and wanton negligence" under the laws of Kansas, and, that being true, contributory negligence is no defense. Contributory negligence is no defense if defendant is guilty of "wilful and wanton negligence." [Kansas Pacific Ry. Co. v. Whipple, 39 Kan. 531, l.c. 541, et seq.] There is a substantial difference between "ordi...