Williamson v. The Wabash Railway Co.

• Decision Date: 15 November 1909
• Parties: WILLIAM WILLIAMSON, Respondent, v. THE WABASH RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

122 S.W. 1113

139 Mo.App. 481

WILLIAM WILLIAMSON, Respondent, v. THE WABASH RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 15, 1909

Appeal from the Randolph Circuit Court.--Hon. A. H. Waller, Judge.

REVERSED.

Reversed and remanded.

J. L Minnis and Robertson & Robertson for appellant.

(1) The petition does not state a cause of action. The petition must be taken in connection with the statement of plaintiff's counsel. Pratt v. Conway, 148 Mo. 291; O'Keefe v. United Railways, 124 Mo.App. 613; Oscanyan v. Arms Co., 103 U.S. 261. (2) And taken in connection with such statement, it does not state a cause of action. Sissel v. Railroad, 214 Mo. 515; Evans v. Railroad, 178 Mo. 517; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Clancy v. Railroad, 192 Mo. 657. (3) The court erred in refusing to instruct a verdict for the defendant at the close of the plaintiff's evidence and at the close of all the evidence. Plaintiff was fully aware of his peril as he knew the train was approaching and his negligence in failing to step from the track and avoid being struck was the proximate cause of his injury. Sissel v. Railroad, supra; Clancy v. Railroad, supra; Brockschmidt v. Railroad, supra; Sharp v. Railroad, 161 Mo. 214; Cahill v. Railroad supra; Evans v. Railroad, supra; Kinlen v. Railroad, 216 Mo. 165; Sims v. Railroad, 116 Mo.App. 572; Ross v. Railroad, 113 Mo.App. 605. (4) Although the plaintiff's own evidence shows that he knew that the train was approaching him it allows the jury to find that plaintiff did not know of its near approach. This is error. Willis v. Power Co., 111 Mo.App. 587; Chambers v. Railroad, 111 Mo.App. 609; Houck v Railroad, 116 Mo.App. 559; Porter v. Railroad, 199 Mo. 93. (5) It allowed the jury to find that the whistle was not sounded as a warning, when the evidence showed that it was sounded. Plaintiff's testimony that he heard no whistle signals was not any evidence that they were not given, nor was that of Robert Fairburn. Plaintiff was not giving the least heed to the train, while Fairburn could not recollect any signals, was deaf, and absorbed in his work. Moore on Facts, secs. 1188, 1190, 1203; McGrath v. Transit Co., 197 Mo. 105; Sullivan v. Railroad, 72 Mo. 195. (6) Therefore the instruction allowing the jury to find that the whistle was not sounded was error. Willis v. Power Co., supra; Chambers v. Railroad, supra; Houck v. Railroad, supra; Porter v. Railroad, supra. (7) The verdict is excessive. The plaintiff's leg was broken and he also received a few minor injuries. There was no expense for treatment. Impairment of earning capacity was not pleaded, there was no evidence of such impairment, and no damages were asked for on that ground in plaintiff's instructions. Therefore the damages must be confined to loss of earnings up to the time of suit (Copeland v. Railroad, 175 Mo. 668), and to pain and suffering. Under these circumstances the verdict is excessive. Railroad v. Wiswell, 68 Ill.App. 443, 48 N.E. 407; Lombard v. Railroad, 47 Iowa 494; Slette v. Railroad, 55 N.W. 137; Dwyer v. Hickler, 43 N. Y. St. R. 221, 16 N.Y.S. 814.

M. J. Lilly for respondent.

(1) The petition states a cause of action. Kellny v. Railroad, 101 Mo. 74; Morgan v. Railroad, 159 Mo. 262; Bectenwald v. Railroad, 121 Mo.App. 599; Cole v. Railroad, 121 Mo.App. 612; Hinzeman v. Railroad, 182 Mo. 622; Hinzeman v. Railroad, 199 Mo. 65; Ross v. Railroad, 113 Mo.App. 605 and cases there cited. (2) Statements made by an attorney at the opening of the trial, as to what he expects to prove, do not amount to admissions. They bind no one. Russ v. Railroad, 112 Mo. 50; Fillingham v. Transit Co., 102 Mo.App. 579. (3) Aside from this legal proposition, the statement made by counsel for plaintiff in this case substantially followed the petition and showed a prima facie case. Plaintiff had no knowledge of the approach of the train. The evidence of plaintiff's witnesses is conflicting as to whether the engineer ever sounded the whistle or not. It is the province of the jury to settle the conflict between plaintiff's witnesses. McGee v. Railroad, 214 Mo. 544; Knorpp v. Wagner, 195 Mo. 661. (4) So far as the whistle is concerned the only signal testified to by any witness was a road crossing signal, "two longs and two shorts." (5) Defendant's instruction "I" as modified by the court correctly declared the law. This instruction as originally drawn limited defendant's duty in the use of all means in its power to stopping the train, and was for that reason objectionable. Hinzeman v. Railroad, supra. (6) When the facts of a case bring it within the "humanitarian rule," nothing short of the use of all reasonable means to avert the injury within the power of the one charged with the exercise of the humanitarian duty meets the requirement of the rule. Cole v. Railroad, 121 Mo.App. 612.

OPINION

JOHNSON, J.

This suit is for damages for personal injuries alleged to have been caused by the negligence of defendant. Verdict and judgment were for plaintiff in the sum of thirty-five hundred dollars, and the cause is here on the appeal of defendant.

The injury occurred about five o'clock p.m. April 13, 1908, at a point on defendant's railroad about one and three-quarter miles south of Cairo. Plaintiff was a section hand in the service of defendant on the section between Cairo and Moberly. The gang had been working about one thousand feet north of the place of the injury. A south-bound regular freight train, sometime overdue, was observed by the foreman to arrive at Cairo, whereupon he ordered some of the men to go for the handcar which was on a dump some distance north. When the men returned with the handcar, the foreman ordered plaintiff and another hand to load the tools on the car and take it south to another dump. According to the testimony of plaintiff, the foreman said: "You take this handcar down there and put the tools on it and set it off the track, but put all the tools on it first and set it off; number seventy (the freight train) is up there; I think you have plenty of time." In obedience to this order, plaintiff and his fellow-workman, after the car was loaded, ran it down to the place indicated and proceeded to remove it to the dump which was on the west side of the track. They lifted and pushed the forward end of the car around to the dump and then plaintiff went around to the rear end to push the car westward until it would clear the track. To do this, he was compelled to take a position between the rails. In pushing the car westward, the rear wheels became stuck or obstructed in some way, retarding the clearing of the track. Plaintiff testified: "I was trying to get the car off the track and I had my head down kinda and was trying to lift the car up and it got caught some way, I don't know how, I had my head down looking under the car trying to raise it up, I was trying to raise the car up to get it off the track . . . and the first thing I knowed I didn't know nothing." At this time the locomotive collided with the handcar and plaintiff was struck and severely injured.

In their argument on the demurrer to the evidence, counsel for defendant earnestly contend that plaintiff was guilty of negligence in law which directly caused or at least contributed to his injury. And further they argue that the facts and circumstances in their aspect most favorable to plaintiff disclose no cause of action under the "humanitarian doctrine."

Facts and circumstances in evidence which are pertinent to the questions argued thus may be stated: Plaintiff says in substance that he did not see the train at any time, did not know it was so near at hand when he was striving to push the handcar off the track and did not hear any warning of its approach. He does admit the foreman told him the train was coming and on cross-examination testified: "Q. You were working as fast as you could? A. Supposed to be. Q. What were you taking that car off for? A. For number seventy? Q. Number seventy that was coming? A. Yes, sir."

The dump to which plaintiff was trying to move the handcar was quite near the whistling post for a road crossing some distance south. All the witnesses introduced by plaintiff except plaintiff himself and one other state the whistle sounded the road crossing signal when the locomotive was about six hundred feet north of the dump. Plaintiff and this witness say they did not hear the whistle but plaintiff attempts to exonerate himself from the imputation of neglecting his own safety by the claim that he had become engrossed in his work, and the other witness admitted on cross-examination that he is "pretty hard of hearing," and "was absorbed in his work." The country through which the train was running is an open prairie and the train was going up a slight grade in approaching the handcar. At the point where the engine whistled for the crossing there is a slight curve in the track. The engineer introduced as a witness testified: "As I approached the curve I could see right straight across and could see the whistling board and could see the handcar setting on the dump and the whistling board in the middle, setting in the middle, and that put me of the opinion that it was in the clear as I approached a little closer I saw that it was not in the clear and I went around the curve a little bit further and saw this handcar, about six hundred feet from the whistling board, and the very minute I saw the man on the track, and he was laying down with his left shoulder against the handcar and his feet up against the opposite rail, trying to push the handcar over and as soon as I seen him, I shut off the steam, and put on the emergency, and give the whistle, two longs and two shorts. He was laying with his...