172 Mo. App. 51 | Mo. Ct. App. | 1913
Plaintiffs, as next of kin of their brother, Elbert Burnett, bring this action against the railroad company under the law of the State of Kansas which provides, in substance, that when the death of one is caused by the wrongful act or omission of another, the next of kin, when no personal representatives had been appointed, the deceased having been a resident of that State at the time, may maintain an action for the death, if the one killed could have maintained an action had he lived against the company for injury for the same act or omission. Such action must be commenced within two years; the damage recoverable not to exceed ten thousand dollars, and the recovery must inure to the, exclusive benefit of the widow and children, if any, or next of kin, to be distributed
Burnett left no parents nor children, as is averred, nor was there any administration on his estate. Alleging that the killing of Elbert Burnett occurred through the wrongful act of defendant in running one of its trains through the city at a very high and "unlawful rate of speed and without proper headlights and without ringing a bell or sounding a whistle, in,violation of an ordinance of the city, and while the deceased was going along the sidewalk of a public street in the city that crossed defendant’s track, defendant’s train by which he was killed then going across that street at the unlawful and reckless rate of about sixty miles an hour, damages are demanded in the sum of two thousand dollars.
The cause was tried to a jury in the circuit court and a verdict returned in favor of plaintiffs in the sum .of $2000, judgment following. Interposing a motion for a new trial as well as one in arrest and saving exceptions to the action of the court in overruling these, defendant has duly perfected its appeal to this court.
The contention of counsel for appellant is that on all the evidence in the case the court should have directed the jury that plaintiffs could not recover. If this contention is correct, there is no occasion to examine into the other points made by the learned counsel on either side.
According to evidence given on behalf of plaintiffs in this case, Elbert Burnett, himself a young man, with one or more other young men, were at the house of one Brunk, a friend, in Nickerson, Kansas, on Thanksgiving Day, 1908. Nickerson is a small city or town of ten or fifteen hundred inhabitants. Young Burnett was working at a farm outside of Nickerson but at the time was living with one Maize, whose house
On this state of facts, which we make briefly, but we think accurately, from a careful reading of the testimony in the case, we are bound to hold that the case should not have gone to the jury but that the demurrer to the evidence should have been sustained. That the defendant railroad company was grossly negligent in disregarding the speed ordinance of the town in running without a headlig'ht, in providing no watchman or signal at this street crossing in the town, in running at an excessive rate of speed in that locality, even leaving out of consideration the town ordinance, is beyond question. But we cannot escape from the conviction, and are compelled to hold as a matter of law, that this unfortunate young man was guilty of such contributory negligence as barred a recovery by his
As covering’ the general proposition here involved, we refer to the decision by our own court in Dey v. United Railways Co., 140 Mo. App. 461, 120 S. W. 134. There Washington, etc., Ry. Co. v. Lacey, 94 Ya. 460, 1. c. 475, is cited and quoted with approval as holding that, “The mere fact of looking and listening is not always a performance of the duty incumbent upon the traveler, for he must also exercise care to make the act of looking and listening reasonably effective. He must not approach the track at such a rate of speed that when he reaches the point where he can see or hear the train itself it is too late to protect, himself from injury. He must exercise ordinary' care in attempting to cross, or in crossing the track, and care is never ordinary care unless it is proportionate to the known danger. ’ ’
This young man was familiar with the premises; he .must have known as a man of intelligence, as he is shown to have been, that extra trains were a matter of almost daily occurrence, certainly were to be expected. He knew, because he had crossed it but a few moments before, that he was approaching a railroad track, an object, as has been said by our court and our Supreme Court in many cases, in itself a warning of danger. So far as the evidence of the witnesses for plaintiffs themselves shows, Burnett neither looked nor listened; nor did he stop when called to by his companion. We are not to be understood as holding
There is no room here for the application of the humanitarian or last clear chance rule. Between the time when young Burnett cleared the depot and was on the track and that when by any lookout the engineer could have seen him, there was no possibility of stopping the on-coming engine.
Respondent argues that if the train had been going at not to exceed six miles an hour, the accident would not have occurred. Who can say that? Who can say what the situation would then have been?
On consideration of the facts in the case and the law applicable to it, as laid down in the cases we have cited, we can come to no conclusion other than that the judgment of the circuit court must be reversed. It is so ordered.