Wolters v. Chicago & A. Ry. Co.

• Decision Date: 05 March 1917
• Docket Number: No. 12248.,12248.
• Citation: 193 S.W. 877
• Court: Missouri Court of Appeals
• Parties: WOLTERS et al. v. CHICAGO & A. RY. CO.

193 S.W. 877

WOLTERS et al. v. CHICAGO & A. RY. CO.

No. 12248.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Rehearing Denied April 2, 1917.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

"Not to be officially published."

Action by Josephine Wolters and others against the Chicago & Alton Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellant. Atwood & Hill, of Kansas City, for respondents.

ELLISON, P. J.

Plaintiffs are the minor children of a deceased father who was killed by one of defendant's freight trains where its tracks cross Grand avenue on the north side of Kansas City, Mo. Their mother did not sue within six months, and hence the right of action became theirs. The judgment in the trial court was for them.

The petition embodies five distinct charges of negligence, as follows:

"(1) That the flagman stationed at said point did not warn or attempt to warn Wolters of the approach of the train.

"(2) That not only did he not warn Wolters of the approach of the train, but that he saw the said Wolters in a position of danger and peril in time, by the exercise of ordinary care on his part, to have warned him of his peril, and thus have prevented his being struck.

"(3) That the train was being run in excess of the pleaded ordinance speed of six miles an hour.

"(4) That no bell was sounded or whistle blown to warn decedent of the approach of the train.

"(5) That the servants in charge of the train saw, or by the exercise of ordinary care could have seen, the decedent in a position of peril on the crossing in time, by the exercise of ordinary care on their part, to have rung the bell or have sounded the whistle, or have slackened the speed or stopped the train, and thus have prevented striking and injuring Wolters, which they failed to do."

The evidence on most of the material points principally favored the party introducing it, and hence, under a familiar rule, we will put aside that for defendant and consider that for plaintiffs as establishing the facts. Grand avenue runs north and south, and defendant's two tracks run east and west, crossing the avenue at right angles. A person walking north on the west side of the avenue in approaching defendant's tracks will pass what is called a stone wall about 18 feet from the south rail of defendant's south track; thence after going over that track it is 8 feet to the south rail of the north track. The train was going east, approaching the avenue at about 25 or 30 miles an hour, and when one passes the stone wall he is in view of those on the engine, and it could be seen by him for a distance of several hundred feet. Deceased was struck just as he was stepping off of the north rail of the north track. The track of another railroad is a few feet north of defendant's north track. The crossing was much used and dangerous and each road kept a flagman there. Allowing 10 feet for the width of defendant's tracks, one walking north to the north rail of the north track after passing the stone wall would walk 36 feet in the open, where he could see the train and the trainmen see him.

On the occasion in question deceased was walking north on the west side of the avenue. He approached the south track, passed over and across the space between the tracks, thence over the north track to the north side, when he was struck. There was a flagman, but no sign or call from him, and no signal given by the trainmen. The city ordinance disallowed a greater speed than 6 miles per hour. Deceased was walking with his head down and had the appearance of "studying."

From the evidence the inference is clearly reasonable that a signal from the engine, or a call from the flagman, would have caused deceased not to have gotten upon the track at all, or else to have taken at least one more step, and that was all he needed.

So, furthermore, but for the high speed of the train in violation of the ordinance, deceased would have escaped, and at no time been in any danger. So there is no room for doubt that a prima facie case of negligence was made against defendant, and we pass to the question of contributory negligence on plaintiff's part.

In certain situations a pedestrian has a right to rely on those in charge of a train obeying speed regulations (Weller v. Railroad, 164 Mo. 180, 64 S. W. 141, 86 Am. St. Rep. 592; Strauchon v. Street Ry., 232 Mo. 587, 135 S. W. 14), but in other situations he is not absolved from the duty to exercise ordinary care, though they are violating such regulations (Laun v. Railroad, 216 Mo. 563, 578, 116 S. W. 553; Reeves v. Railroad, 251 Mo. 169, 158 S. W. 2).

Defendant insists that deceased was guilty of contributory negligence as a matter of law, and that the trial court erred in submitting the question to the jury. If there were no contrary circumstances to influence a pedestrian in approaching a railway track, the fact that he did attempt to pass over it when a train was near by approaching at high speed would condemn him. Sanguinette v. Railroad, 196 Mo. 466, 489, 95 S. W. 386; Keele v. Railroad, 258 Mo. 62, 167 S. W. 433. But influential circumstances did appear in this case. The flagman saw plaintiff and the train (or should have seen them if in the exercise of...