Wilder v. The Wabash Railroad Company

• Decision Date: 29 April 1912
• Citation: 146 S.W. 837,164 Mo.App. 114
• Parties: ELIZA J. WILDER, Respondent, v. THE WABASH RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

146 S.W. 837

164 Mo.App. 114

ELIZA J. WILDER, Respondent, v. THE WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

J. L Minnis and Guthrie & Franklin for appellant.

(1) Plaintiff's petition fails to state a cause of action. Gurley v. Railroad, 93 Mo. 445; Railroad v Adams, 24 S.W. 839; Hennessey v. Railroad, 12 S.W. 608; Nivert v. Railroad, 232 Mo. 626. (2) The court should have required plaintiff to make her petition more definite, specific and certain. R. S. 1909, art. 5 chap. 21, sec. 1794; R. S. 1909, art. 5, chap. 21, sec. 1815; Gurley v. Land & L. S. Co., 163 Mo. 342; Rush v. Brown, 101 Mo. 589. (3) Defendant's demurrer at the close of plaintiff's evidence should have been sustained. Dyrcz v. Railroad, 238 Mo. 33, 141 S.W. 861; Newton v. Railroad, 152 Mo.App. 167; Waggoner v. Railroad, 152 Mo.App. 173; Veatch v. Railroad, 145 Mo.App. 232; Laun v. Railroad, 216 Mo. 563; Holland v. Railroad, 210 Mo. 338; Schmidt v. Railroad, 191 Mo. 215; Sanguinette v. Railroad, 196 Mo. 466; Gumm v. Railroad, 141 Mo.App. 306. (4) Plaintiff's petition states, if it states a cause of action at all, a common law action for negligence at a railroad crossing. It specifically states that deceased was in the exercise of due care and that he was killed by the negligence of the defendant. And while so pleading, the court instructed fully and plaintiff was permitted to recover under the humanitarian or last chance doctrine. This is error. The plaintiff must recover on the cause of action stated, if at all. Hufft v. Railroad, 222 Mo. 286; Black v. Railroad, 217 Mo. 672; Compton v. Railroad, 147 Mo.App. 414; Jacquin v. Cable Co., 57 Mo.App. 320. The evidence in this case shows conclusively that the last chance doctrine does not apply, even if it had been pleaded, which it was not. Newton v. Railroad, 152 Mo.App. 167; Waggoner v. Railroad, 152 Mo.App. 173; Veatch v. Railroad, 145 Mo.App. 232; Pennell v. Railroad, 153 Mo.App. 566.

R. W. Burrow and Nat. M. Lacy for respondent.

(1) Plaintiff's petition states a cause of action. Schneider v. Railroad, 75 Mo. 295; Mack v. Railroad, 77 Mo. 232; Sullivan v. Railroad, 97 Mo. 113; Page v. Railroad, 99 Mo. 400. (2) A motion to make a pleading more definite and certain is waived by answering over or participating in the trial, but the petition in this cause is good even as against such a motion. Page v. Railroad, 99 Mo. 400; Sauter v. Leveridge, 103 Mo. 615; Rinard v. Railroad, 164 Mo. 270; Dakin v. Mercantile Co., 197 Mo. 270.

OPINION

JOHNSON, J.

Plaintiff, the widow of William L. Wilder, deceased, sued to recover damages for the death of her husband which she alleges was caused by the negligence of defendant in the operation of a train over a public crossing in the city of Macon. The answer, in effect, is a general traverse (Ramp v. Railway, 133 Mo.App. 700.) The trial resulted in a verdict and judgment for plaintiff in the sum of thirty-two hundred and fifty dollars and the cause is here on the appeal of defendant.

The death of plaintiff's husband occurred in the afternoon of September 28, 1910, within the corporate limits of the city of Macon at a place where several railroad tracks owned and operated by defendant crossed an east and west public street, or road, at right angles. A locomotive headed south was switching back and forth at a time when Wilder approached the crossing from the east on horseback. He stopped to allow the train (which consisted of the engine and two freight cars and was backing north) to clear the crossing, and when the engine passed over the crossing and stopped at a point variously estimated at from four to ten feet north of the road, he proceeded to cross in front of the engine and his horse was on the crossing when the engine, without warning, started forward. Had the horse not become unruly, Wilder would have crossed in safety, but the horse became frightened, reared and plunged on the track and finally threw Wilder at a point thirty feet south of the middle of the road. Wilder fell on the pilot and made a prolonged and frantic but unsuccessful struggle to save himself. He emitted loud and terrified outcries but failed to attract the attention of the engine men. Finally, at a place over one hundred and fifty feet south of the middle of the wagon road, he was drawn under the wheels of the engine and killed. The speed of the engine did not exceed four or five miles per hour and there is evidence tending to show that at such speed the engine could have been stopped in from twenty-five to thirty-five feet. Evidently the engineer and fireman did not know of Wilder's peril and did not hear his outcries, though they were very loud, as their attention had been suffered to be diverted from the crossing. The failure of the engineer, who was seated on the west side of the cab, to see the horseman, no doubt, was due to the fact that owing to the obstruction of the boiler and the short distance the engine ran north of the road the horseman at no time was in the range of his vision, but there was nothing to prevent the fireman whose place was on the east side of the cab from seeing the horseman waiting near the track to cross as soon as the engine would allow him sufficient clearance. We have stated the principal facts of the case in their phase most favorable to the cause of action asserted and now shall consider the question of their sufficiency to take the case to the jury.

We think the evidence justifies the inference as one of fact that had the operators of the engine been in the exercise of reasonable care they would have known of the presence of the horseman and would not have started the engine forward while he was in the very act of crossing and thereby imperiled his safety. This was a public crossing to the use of which Wilder's right was equal to that of defendant. Certainly with the engine at rest and, therefore, innocuous, the engineer should not have started forward without making a reasonable effort to ascertain whether or not he had a clear track. The fact that on account of the boiler head being in the way of his vision he could not see the crossing and the wagon road east of it gave him no right to assume that the way was clear. The fireman was in the east side of the cab where he could observe the conditions on that side of the track and considering that this was a public road crossing the duty of maintaining a reasonable lookout for danger devolved on both enginemen. To hold that in such case the engineer only is chargeable with the duty of looking ahead would be to hold, in effect, that a railroad company has a paramount right to the use of a public street and owes no duty to people rightfully using the crossing who are unfortunate enough to be on the blind side of the engineer. It is the duty of a railroad company to have eyes on both sides of the...