Zumault v. Kansas City Suburban Belt R. Co.

• Decision Date: 19 May 1903
• Court: Missouri Supreme Court
• Parties: ZUMAULT v. KANSAS CITY SUBURBAN BELT R. CO. et al.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 1015

175 Mo. 288

ZUMAULT v. KANSAS CITY SUBURBAN BELT R. CO. et al.^*

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

RAILROADS—INJURIES TO PERSON AT STATION — CONTRIBUTORY NEGLIGENCE — WILLFUL NEGLIGENCE—EVIDENCE—BILL OF EXCEPTIONS—FILING—EXTENSION OF TIME—STIPULATION.

1. Rev. St. 1899, § 728, provides that the time for filing bills of exception may be extended for the time the parties to the suit may, in writing, agree on, which agreement shall be filed by the clerk. In a case pending in Jackson county circuit court, Division 3, a stipulation for extension of time was filed in Division 2 of said court. Held that, as there was but one clerk of the circuit court in Jackson county, the clerks in charge of the respective divisions were his deputies, and the statute was complied with.

2. The statute further provides that such agreement shall be copied into the transcript of record when sent to the Supreme Court or Court of Appeals. The abstract of both parties showed that the agreement was filed by the clerk of the court, and that a record of the filing was made on the record then in use in Division 2 of said court in vacation. Held sufficient, as against respondent's contention that, as the agreement was not copied in the bill of exceptions, the judgment should be affirmed.

3. The fact that the stipulation may not have been copied in the bill of exceptions was no ground for affirming the judgment, as such objection should have been reached by a motion of some character.

4. Plaintiff, a man in possession of all his faculties, and familiar with the movements of trains, while momentarily expecting one's arrival, sat on the station platform, so near the tracks that a train could not pass without striking him, turned his face opposite to the direction from which the train was coming, and either fell asleep, or from some other cause became entirely oblivious to his surroundings. Held contributory negligence.

5. Defendant's engineer testified that he was keeping a lookout ahead; that his train did not stop at the station, nor was any passenger train due there at the time, so that he had no reason to anticipate the presence of any person on the platform; that the engine was not over 10 or 15 feet from plaintiff when he first saw him; that he immediately applied the air brakes; and that there was nothing to obstruct his view, except that plaintiff was sitting in the shade of the platform. Held not to show a willful or wanton disregard of human life, warranting a recovery notwithstanding plaintiff's contributory negligence.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action by William S. Zumault against the Kansas City Suburban Belt Railroad Company and the Independence Air Line. Judgment for plaintiff. Defendants appeal. Reversed.

Lathrop, Morrow, Fox & Moore, for appellants. John L. Wheeler, for respondent.

BURGESS, J.

This is an action for $20,000 damages, alleged to have been sustained by plaintiff on the night of the 2d day of August, 1895, by reason of the negligence of defendants. The petition alleges: "That on the dates hereinafter mentioned the said Kansas City, Missouri, was and for many years prior thereto had been, a municipal corporation, duly created, organized, and existing under and by virtue of the laws of the state of Missouri. That from the eastern limits of Kansas City, Missouri, to the Grand Central Depot in said city, both defendants herein at all the times herein mentioned, ever since have, and now use and occupy the same tracks, depots, and platforms, and the depot and platform hereinafter mentioned. That the defendants constructed a depot and platform on said railway at a point called `Elmdale,' within the corporate limits of said city, for the use and convenience of their passengers traveling on said roads, and the same were used for said purposes on the dates hereinafter mentioned. That on the 2d day of August, 1895, at about fifteen minutes after eleven o'clock p. m., plaintiff went to said station and depot for the purpose of taking passage on one of defendant's trains east to a station on said railroad called `Milwaukee'; that upon his arrival at said station plaintiff sat down upon said platform, and while he was in that position, and in the exercise of ordinary care and diligence, a train from the west, composed of a locomotive and cars propelled by steam, managed, operated, and propelled by defendants, their agents and servants, carelessly and negligently struck plaintiff on the left side of the head, mashing and splintering the skull, and otherwise seriously and permanently injuring plaintiff as hereinafter stated. That the injuries received by plaintiff as aforesaid were caused by the wrongful act, negligence, carelessness, unskillfulness, and default of the defendants, in this: that the servants and agents and employés of defendants at the time and place when and where plaintiff was injured as aforesaid, and whilst so running, conducting, and managing said locomotive, and cars thereto attached, negligently and carelessly and unskillfully failed to give warning, by the ringing of the bell or the blowing of the whistle, to plaintiff, of the approach of said locomotive, and cars thereto attached, as it was their duty to do, after they knew, or by the use of ordinary care might have known, of the danger to which plaintiff was exposed; that at the time and place aforesaid the agents and servants and employés of defendants, whilst running, managing, and conducting said locomotive, and cars thereto attached, negligently, carelessly, and unskillfully struck and injured plaintiff, when they knew, or by the exercise of ordinary care might have known, of the danger to which plaintiff was exposed; that at the time plaintiff was injured as aforesaid the servants, agents, and employés of the defendants, whilst running, conducting, and managing said locomotive and cars thereto attached, negligently, carelessly, and unskillfully failed to stop said locomotive and cars in time to avoid collision with plaintiff after they knew, or by the use of ordinary care might have known, of the danger in which plaintiff was placed; that the defendants had carelessly and negligently permitted the weeds on their right of way on the south side of their south track, and west of said depot and platform, to grow so high that they obstructed the view of an approaching train from the west to a passenger on said platform, and obstructed the view of defendant's agents and servants in charge and control of the train which struck plaintiff, and said agents and servants were thereby prevented from seeing the plaintiff in time to have avoided the accident; that defendants carelessly and negligently used and maintained said depot and platform on the night aforesaid without having any light in or about the same; that defendants carelessly and negligently constructed the same so near the track of said railway that parts of the engine and cars of defendants would pass over said platform made for the use and occupancy of the passengers, and carelessly and negligently maintained, caused to be maintained, and suffered and permitted said platform to be used and remain in such dangerous condition at the times aforesaid, when they knew of its dangerous condition. or by the exercise of ordinary care might have known of its dangerous condition. That by reason of the injuries aforesaid it became necessary to remove a large amount of plaintiff's skull and brains, or the left side of his head, and the same was removed, and plaintiff's mind was permanently injured and affected, so that he can never recover proper use of the same, and by reason and means whereof plaintiff's nervous system was greatly and permanently injured and impaired, causing plaintiff to become sick, weak, and permanently disabled and debilitated, and to suffer from constant and serious nervous diseases and disorders, and permanently and seriously impaired the hearing of his left ear, and by means and by reason whereof plaintiff was greatly, seriously, and permanently disabled for life. That by reason and in consequence of the injuries inflicted and sustained upon and by plaintiff as aforesaid through the negligence, recklessness, and unskillfulness and carelessness of defendants as aforesaid, and without any negligence on his part, plaintiff has suffered and still suffers and will ever continue to suffer great pain and discomfort, and has been and will ever be hindered, disabled, disqualified, and prevented from transacting and attending to his business and affairs, to the damage of plaintiff in the sum of nineteen thousand and five hundred dollars. That by reason of the injuries to plaintiff as aforesaid, he has been compelled to and has expended and will continue to expend large sums of money for medical attendance, hospital bills, medicines, nursing, and care, to wit, the sum of five hundred dollars." The defendants answered separately, denying generally all allegations in the petition, accompanied with a plea of contributory negligence and the misjoinder of defendants. The trial resulted in a verdict and judgment for plaintiff in the sum of $5,000, from which defendants appeal.

Briefly stated, the facts are that "the Kansas City Suburban Belt Railroad Company owns a line of railroad extending from the Second and Wyandotte Street Depot, in Kansas City, to a point several miles east, known as the `Air Line Junction,' located near the point where the Blue river flows into the Missouri. The Kansas City & Independence Air Line owns a line of road from this junction to Independence, Missouri. The Belt Line does a switching business. It owns no equipment, except engines, and its revenue is derived from hauling and switching the cars of other companies. The Air Line operates passenger and freight trains between the Second and Wyandotte Station in Kansas City and Independence, Mo. It has a trackage contract whereby it is...