Opinion
No. 42390.
March 10, 1952. Motion for Rehearing or to Transfer to Court En Banc Denied April 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, J.
Clarence C. Chilcott, Kansas City, for appellant.
Charles M. Miller, Kansas City, for respondents, Gulf, Mobile and Ohio R. Co. et al.
Horace F. Blackwell, Jr., John H. Lathrop and James F. Walsh, Kansas City, for respondent Kansas City Terminal Ry. Co.
Action for $10,000 damages for wrongful death of plaintiff's husband Michael J. Kilroy, a former police judge of Kansas City. Verdict and judgment for defendants and plaintiff appealed.
Plaintiff alleges error in instructions given at defendants' request. However, we have concluded that defendants are correct in their contention that plaintiff failed to make a jury case, so it will not be necessary to consider the instructions.
Judge Kilroy was killed when struck by some part of defendants' engine (either the pilot beam or cylinder) while he was standing near defendants' track. The case was submitted solely upon humanitarian negligence of failure to stop. Defendants offered no evidence and the facts hereinafter stated were shown by plaintiff's evidence, which we consider most favorable to her claim. Defendants had three tracks in the Missouri River bottoms at the foot of the bluffs in the northeast part of Kansas City. There was a scenic drive along the top of these bluffs known as Cliff Drive. There were several paths from the top of the bluffs to the river bottoms. One of these, which came down the bluff near the place where Judge Kilroy was struck, was used by employees of the Washburn Crosby Mill and the Missouri Pacific shops located a quarter of a mile or more beyond defendants' tracks. This path was very steep and had concrete steps and handrails over part of the way. All the evidence, including pictures, showed that this path went to the south side of defendants' tracks and then continued from the other side in a northeasterly direction. The whole area at the foot of the bluff was a part of the railroad yards of the defendant Gulf, Mobile and Ohio Railroad. The main line tracks were leased to it by the Terminal. These were busy tracks used also by the Missouri Pacific.
These tracks ran east and west. The first track north of the foot of the bluff was a switch track, called the lead track. The second was the eastbound main line track, called track No. 81. The third, farthest north, was the westbound main line track, called track No. 80. There was only one eyewitness to the casualty who testified at the trial, S.E. Thomas, a car cleaner. While Thomas was walking west, between the lead track and track No. 81, he saw a drag of about twelve cars moving west on the lead track west of him and a local freight train of five cars and caboose moving west on track No. 80. There was nothing on the middle track No. 81. The local was going faster than the drag. (The only evidence of its speed was between 15 and 20 miles per hour.) Thomas testified that when he saw Judge Kilroy he was standing, with his back to the north track No. 80, looking at the drag on the lead track. There was three men on top of one of the cars of the drag and, "after this train passed that hit him, they waved for him to get off the track." He said: "When the switchman waved for him to get off the track he throwed up his hand and that is the time it struck." (Apparently Judge Kilroy did not understand their signal and may have started to wave back to them.) Thomas said when he saw Judge Kilroy the rear car of the drag was about 200 feet west of where he, Thomas, was walking. Therefore, the engine pulling the drag would have been near, and probably beyond, the place where Judge Kilroy was standing. He estimated that he was about 630 feet east of Judge Kilroy when he was struck. The track was straight for this distance to the east. Thomas said Judge Kilroy was not on the track between the rails; that "he was standing at the side of the track"; that "it seemed like he was close enough to be on the ties"; and that he did not know whether it was the pilot beam or the cylinder that struck him.
The testimony of the engineer of the local, at the coroner's inquest, was put in evidence by plaintiff. The engineer was on the right side of the engine (the opposite side of the track from where Judge Kilroy was standing) and did not see Judge Kilroy. He said he had the engine bell ringing all the time. The fireman on the left side of the engine said "blow the whistle." He did so and then asked the fireman "if we struck something." The fireman said "yes" so he stopped. He said he could have stopped in 100 feet at the speed he was going. He said there was a curve about 200 yards east of where Judge Kilroy was struck and from this curve west the track was straight. He said: "If there was anyone there I could have seen them but he was not there." (Apparently he meant at the time he got around the curve.) This version was substantially the same as that stated to police officers on the day of the occurrence, namely, that "he didn't see the man, the length of the locomotive obstructed his view"; and that "the fireman told him to blow his whistle." There was something in the police report to the effect that "he blew the whistle and the man made no move to get out of the way." However, this can only be construed to refer to what others told him because the engineer at all times said he never saw Judge Kilroy before he was struck.
Plaintiff relies upon the cases holding that there is a duty to keep a lookout at places where there is public user of tracks for a crossing with notice and knowledge of the railroad company, citing Eppstein v. Missouri Pacific R. Co., 197 Mo. 720, 94 S.W. 967; Wise v. Chicago, R. I. P. R. Co., 335 Mo. 1168, 76 S.W.2d 118. However, the use must be confined to the limits proved. Crossno v. Terminal R. Ass'n, 333 Mo. 733, 62 S.W.2d 1092; Frye v. St. Louis, I. M. S. R. Co., 200 Mo. 377, 98 S.W. 566, 8 L.R.A., N.S., 1069; see also Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105; Angelo v. Baldwin, 343 Mo. 310, 121 S.W.2d 731; Hufft v. St. Louis S. F. R. Co., 222 Mo. 286, 121 S.W. 120. Plaintiff proved sufficient user on the path that came down the bluff to defendants' tracks and continued on from the other side to the mill and shops; but all the evidence was that the users of this path went directly across the railroad at this place. However, plaintiff completely failed to prove that Judge Kilroy was on this path or where he was with reference to it. Thomas said he did not know how far the place where Judge Kilroy was struck was from this path and never gave any attention to it. He did say the place was east of the old Dickey clay mill which apparently was northeast of the place where the path crossed the tracks. It appears that it was Judge Kilroy's custom to walk all over the yard area and that he often came to the place of work of Thomas three-fourths of a mile east of where the accident happened. Therefore, under the above cited cases, we must hold that plaintiff's evidence was insufficient to make a jury issue on imposing a duty on defendants to keep a lookout at the place where Judge Kilroy was struck. Thus the only issue was: could defendants have prevented his injury after he was discovered in a position of imminent peril?
On this issue, there was no evidence whatever to show when Judge Kilroy got close to the track or how long he was there. This case is very different on the facts from the cases cited by plaintiff, such as Dutcher v. Wabash R. Co., 241 Mo. 137, 145 S.W. 63; Privitt v. St. Louis San Francisco R. Co., Mo.Sup., 300 S.W. 726; Boyer v. Baldwin, Mo.App., 106 S.W.2d 21; and State ex rel. Baldwin v. Shain, Mo. Sup., 125 S.W.2d 41. There was nothing herein to show whether Judge Kilroy was close to the track for any period of time prior to the time when the fireman said: "blow the whistle", or whether he had only then moved into that position. (It appears that plaintiff took the fireman's deposition but did not call him as a witness.) There was nothing to show how far the engine was from him when the fireman first saw him or how soon the engine reached him after the whistle was sounded. Thus there is no basis for any finding as to whether the train could have been stopped, after he was discovered, in time to prevent his injury. See Hendrick v. Kurn, 352 Mo. 848, 179 S.W.2d 717; Baecker v. Missouri Pac. R. Co., 240 Mo. 507, 144 S.W. 803. One of the essential elements of the humanitarian rule is that "defendant after receiving such notice (of a person's position of imminent peril) had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others". Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482, 484. There is a total failure of proof herein as to this element.
The judgment is affirmed.
All concur.