Williams v. Kansas City Southern Ry. Co.

CourtMissouri Supreme Court
Writing for the CourtLamm
Citation257 Mo. 87,165 S.W. 788
Decision Date02 April 1914
PartiesWILLIAMS v. KANSAS CITY SOUTHERN RY. CO.
165 S.W. 788
257 Mo. 87
WILLIAMS
v.
KANSAS CITY SOUTHERN RY. CO.
Supreme Court of Missouri.
April 2, 1914.

1. TRIAL (§ 156)—DEMURRER TO EVIDENCE— CONSIDERATION OF EVIDENCE.

On demurrer to the evidence, defendant's testimony, where contradicted, is taken as false, and plaintiff's, where not self-evidently perjured as opposed to the physics of the case, is taken as true.

2. MASTER AND SERVANT (§ 240)—LIABILITY FOR INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

An experienced brakeman on a freight train on a dark night, without a white lantern, sprang from the front of the moving engine, intending to "run for a switch" to throw it without the train stopping, and was injured by stepping into a hole in the track and the engine passing over him. Held, that he was guilty of contributory negligence precluding recovery.

3. EVIDENCE (§ 14)—JUDICIAL NOTICE.

Judicial notice was taken of the value of a light to the human eye in the nighttime, in running along an unknown runway.

Brown and Bond, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by John L. Williams against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Cyrus Crane and Geo. J. Mersereau, both of Kansas City, for appellant. Guthrie, Gamble & Street and A. F. Smith, all of Kansas City, for respondent.

LAMM, C. J.


Plaintiff sued in the Jackson circuit court for $50,000 damages for personal injuries. Issue was joined on an amended petition. Presently plaintiff recovered judgment for $10,000, and defendant appealed.

A word on the pleadings will be helpful, thus: Plaintiff, a freight brakeman, complained in his petition that he was employed on one of defendant's freight trains that was through negligence so heavily loaded, operated on such schedule, and run at such speed that it was necessary for him, in the due course of his employment, to alight from the engine of his train while in motion for the purpose of throwing a switch, etc.

(Note: The question whether the train was so negligently loaded, scheduled, and run as to cause plaintiff to alight from it while in motion was not submitted to the jury as a ground of liability.)

The petition next charged that defendant "negligently maintained its track, roadbed, and right of way at and near such point [to wit, a way station, Drexel], so that the same had holes and depressions therein and was (sic) not reasonably safe for the use of its employés in passing over the same in the proper and required course of their employment as such;" that, as the direct result of such negligent maintenance, plaintiff, on getting off the train to turn a switch, fell and was injured. Negligent maintenance was the issue put to the jury as the ground of liability.

The answer was a general denial, plus pleas of contributory negligence and assumption of risk. The reply took issue on the new matter.

We allow ourselves a foreword, thus: There are record signs of a mistrial below. So, this cause, a difficult one, having been thoroughly argued twice by both sides, we believe, in division and once in banc, we are warned by respondent's veteran and able counsel as follows, to wit: "There comes a time where patience ceases to be a virtue." There were signs beyond that admonition, both in briefs and in oral argument by respondent, showing that, as "patience had ceased to be a virtue," impatience had taken her place and was relied on as one. Whether impatience is ever a virtue at the bar or on the bench of an appellate court is doubtful. The Chinese have a proverb running, "Patience and the mulberry leaf become a silk gown;" and there is high authority from no less a lawyer than Paul that: Tribulation worketh patience; and patience, experience; and experience, hope; and hope, etc. Observe all that category of related virtues is handy always, and nowhere more so than to bench and bar.

In a strong brief respondent took the hazardous course of not making a plain, concise, colorless statement of fact and issues. The statement submitted carried the color of comment with almost every fact; comment argumentative in character and having no legitimate place in a statement of facts and issues. A fact stained with comment is an elusive and misleading thing. Accordingly our Brother, who first wrote this case in division, was driven away from respondent's statement because of the mischief of its fatal mixture of fact and comment, with no marked line of

165 S.W. 789

cleavage between the two, and, as appellant's statement was apparently unchallenged, it was naturally accepted as a proper one. In doing so we inadvertently fell into error and corrected it by granting a rehearing. Counsel differ so vehemently on the facts that we will discard both statements and from original sources, to wit, the voluminous record supplemented by facts of which we take judicial notice, we will make one of our own, thus: There is no assignment of error here on any question of pleading, none on any in the admission or exclusion of testimony, and none on any on the giving or refusing of instructions on either side, save one, to wit, the refusal of an instruction prayed by defendant in the nature of a demurrer to the evidence at the close of the whole case. Defendant demurred to the evidence at the close of plaintiff's case, and again at the close of the whole case, and, in its motion for a new trial and in arrest and now in its briefs, it stands on the single blunt proposition, to wit, that on the facts plaintiff made no case for the jury.

Attend to the facts.

Drexel is a way station on defendant's line south of Kansas City at a point hard by where Cass county corners with Bates and the line dividing Missouri from Kansas. At the times in hand the United States census shows it was a village of between 400 and 500 souls. There are estimates by witnesses higher than that. The south line of the village is a public east and west road cutting the railroad at right angles and running about one-fourth of a mile south of the station. Where this dirt road crosses the railroad, there is the usual cattle guard and wing fence. Something less than a hundred feet north of this cattle guard, in the outskirts of the village, is a switch, and there a passing track commences. Save that passing track, defendant's road runs north and south and consists of one main stem. This passing track runs northwardly on the west side of the main track. This switch stand has a switch light, showing red when the switch is open for the siding and green when open for the main track. This switch stand is on the west side of the main track, so that, to a train going north, the switch stand is on the fireman's side who rides on the west or left-hand side of an engine north bound, as was the engine in question. South of this public road defendant's track is in a field. We will recur in due course to the lay of the land at Drexel. Plaintiff, when hurt, must have been the rise of 24 years of age (26 at the time of the trial). He had commenced his railroading with the Santa Fé as a call boy at the age of 19 or 20. He next was a fireman on a switch engine in a Santa Fé yard. The then was a yard switchman. He then fired a road engine on the Santa Fé. For some act of "insubordination" he was discharged from that road, and in April, 1907, he took service with defendant, and was assigned to duty in Pittsburg, Kan., as an extra freight brakeman, running for four months mostly south from that place (a division terminal point), when, now and then, he was called to duty as an extra man, but he also ran north through Drexel to Kansas City. The trip slips kept by defendant show that prior to his injury he made 22 trips north from Pittsburg to Kansas City, as we understand it, during April, May, June, and up to July 22d, in 1907. There is no contradiction of these slips, although plaintiff's recollection varies in some instances from no trip that he remembers up to several he recalls. As a switchman's and a brakeman's duties overlap to some extent, we may call plaintiff an experienced brakeman. There were trains on defendant's road called "regular" or "superior" freight trains —"carded" trains, scheduled and entitled to the right of way, as against "inferior" or extra freight trains. One of its superior trains was numbered 53, and henceonward we will call it train No. 53. On a dark night, about midnight of July 22, 1907, and on schedule time, No. 53 was south bound, loaded with merchandise, and due to leave Drexel at 11:25 p. m., passing through without stopping. At that very same time plaintiff was approaching Drexel from the south on an extra freight of 23 loaded coal cars from Pittsburg, Kan., bound for Kansas City. Plaintiff was riding on the engine on a seat provided on the fireman's side, a proper place for him to be. His train crew consisted of a conductor, riding in the caboose, a rear brakeman, an engineer, and a fireman. By the rules of the company the conductor had charge of the train, but the engineer was also charged with responsibility, and the case may proceed on the theory that the evidence shows it was proper for the head brakeman to take orders from the engineer, under the circumstances presently disclosed. Coming into Drexel from the south is an upgrade, what per cent. we are not informed. But a train loaded to its tonnage capacity labors some in reaching the summit of the grade. There being no evidence contra, we will assume plaintiff's train was loaded to rulable capacity. The switch spoken of is not at the summit, but south of it, and we take it the grade vanishes somewhere between this switch and the station.

The main track is on a "little curve," and there is some slope from the west to the east, so that the roadbed is a bit higher above the natural level of the ground on the west than on the east. We take it from the record that on the west there is a little cut and the usual...

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77 practice notes
  • Kramer v. Grand Natl. Bank, No. 32532.
    • United States
    • United States State Supreme Court of Missouri
    • April 17, 1935
    ...specifications of negligence properly pleaded by him. [Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039, l.c. 1048; Williams v. Railroad Co., 257 Mo. 87, l.c. 112, 116, 165 S.W. 788; Van Raalte v. Graff, 299 Mo. 513, l.c. 526, 252 S.W. 220.] The respondent contends that appellant's testimony w......
  • Scrivner v. American Car and Foundry Co., No. 29640.
    • United States
    • United States State Supreme Court of Missouri
    • May 24, 1932
    ...Light & Power Co., 220 S.W. 865; Peck v. Missouri Pacific Railway Co., 31 Mo. App. l.c. 123; Williams v. Kansas City Southern Railway Co., 257 Mo. 87, 165 S.W. We will next examine the origin and the admissibility of plaintiff's Exhibit B and in that connection we will also consider the sub......
  • Patton v. Shelton, No. 29658.
    • United States
    • Missouri Supreme Court
    • July 3, 1931
    ...the facts shown the demurrant is not required to admit." [Bushman et al. v. Barlow et al., supra; Williams v. Railroad, 257 Mo. l.c. 112, 165 S.W. 788, 52 L.R.A. (N.S.) 443; Van Raalte v. Graff, 297 Mo. l.c. 526, 253 S.W. 220.] And by parity of reasoning, the question of the application of ......
  • Cech v. Chemical Co., No. 28020.
    • United States
    • Missouri Supreme Court
    • August 6, 1929
    ...plaintiff's own evidence was held conclusively to show contributory negligence, but the facts were not analogous. In Williams v. Railroad, 257 Mo. 87, 165 S.W. 757, deceased, a brakeman, stepped off a moving train in front of the engine, intending to throw a switch, and in some way fell and......
  • Request a trial to view additional results
77 cases
  • Kramer v. Grand Natl. Bank, No. 32532.
    • United States
    • United States State Supreme Court of Missouri
    • April 17, 1935
    ...specifications of negligence properly pleaded by him. [Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039, l.c. 1048; Williams v. Railroad Co., 257 Mo. 87, l.c. 112, 116, 165 S.W. 788; Van Raalte v. Graff, 299 Mo. 513, l.c. 526, 252 S.W. 220.] The respondent contends that appellant's testimony w......
  • Scrivner v. American Car and Foundry Co., No. 29640.
    • United States
    • United States State Supreme Court of Missouri
    • May 24, 1932
    ...Light & Power Co., 220 S.W. 865; Peck v. Missouri Pacific Railway Co., 31 Mo. App. l.c. 123; Williams v. Kansas City Southern Railway Co., 257 Mo. 87, 165 S.W. We will next examine the origin and the admissibility of plaintiff's Exhibit B and in that connection we will also consider the sub......
  • Patton v. Shelton, No. 29658.
    • United States
    • Missouri Supreme Court
    • July 3, 1931
    ...the facts shown the demurrant is not required to admit." [Bushman et al. v. Barlow et al., supra; Williams v. Railroad, 257 Mo. l.c. 112, 165 S.W. 788, 52 L.R.A. (N.S.) 443; Van Raalte v. Graff, 297 Mo. l.c. 526, 253 S.W. 220.] And by parity of reasoning, the question of the application of ......
  • Cech v. Chemical Co., No. 28020.
    • United States
    • Missouri Supreme Court
    • August 6, 1929
    ...plaintiff's own evidence was held conclusively to show contributory negligence, but the facts were not analogous. In Williams v. Railroad, 257 Mo. 87, 165 S.W. 757, deceased, a brakeman, stepped off a moving train in front of the engine, intending to throw a switch, and in some way fell and......
  • Request a trial to view additional results

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