Home/Supreme Court of Missouri/Keele v. Atchison, Topeka & Santa Fe Railway Co.

Keele v. Atchison, Topeka & Santa Fe Railway Co.

167 S.W. 433, 258 Mo. 62, 1914 Mo. LEXIS 317
CourtSupreme Court of Missouri
DecidedMay 20, 1914
StatusPublished
Cited by28 cases

This text of 167 S.W. 433 (Keele v. Atchison, Topeka & Santa Fe Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keele v. Atchison, Topeka & Santa Fe Railway Co., 167 S.W. 433, 258 Mo. 62, 1914 Mo. LEXIS 317 (Mo. 1914).

Opinion

LAMM, C. J. —

The parents of Pearl E. Keele, a minor, sued the corporate defendant in the Jackson Circuit Court for her negligent death where- a county road crossed defendant’s track in Kansas. Presently the father dying, plaintiff, the mother, filed an amended petition and (over the answer of defendant taking issue thereon) was allowed to prosecute the action to a judgment in her sole name. She had a verdict for $5000. Prom a judgment following, defendant appealed to the Kansas. City Court of Appeals. That court, being of opinion constitutional questions were involved, sent the case here, and (as we overruled a motion to retransfer it) here it is.

Questions are raised on constitutional law, on pleadings, on practice, on evidence, on instructions given for the plaintiff and refused to defendant. One of the latter hinges, on the sufficiency ' of the evidence to make a case, either under the law of negligence as administered in Kansas or in this State. That contention seeks the fact and trial issues thereon. If, under the grounds of recovery (relied on pro) and [68]*68the defense of contributory negligence (relied on con) there is no case on the facts, then the case breaks at that point and all other questions become unimportant. If there be a case on the facts, then other questions remain to be reached and disposed of in their order. Attend to the matter from the viewpoint of case or no ease.

We omit pleadings. Let it be assumed that plaintiff’s principal instruction was. within the averments of the petition. It suggests the gravaman of the action, indicates'the trial theory and-reads in part, and so far as material, thus:

“The court instructs the jury that Pearl E. Keele, deceased, was negligent in approaching and going upon the track of the defendant upon which she was struck by a train of the defendant; still, if you further .believe and find from the evidence that said Pearl E. Keele was approaching and going upon the track of the defendant upon which she was struck and into a position of peril of being struck by said train, and that she was unaware of.and oblivious to such danger, and if you further believe and find from the evidence, that the engineer or fireman of said train, by keeping a vigilant lookout ahead of him, could, by the exercise of ordinary care, have discovered that said Pearl E. Keele, deceased, was approaching said track, and was going into a position of peril of being struck by said train, and that she was unaware of and oblivious of her danger, and that if she was not warned before she went on said track she would place herself in the way of said train, and if you further believe and find from the evidence that said engineer or fireman could, by the exercise of ordinary care 'have warned said Pearl E. Keele of the approach of said train by the whistle or bell of said engine before she went on said track, and could thereby, by the exercise of ordinary-care, have avoided striking and injuring her, and negligently failed to give such warning of the [69]*69approach of said train; and if yon further believe and find from the evidence that if such warning by the whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would not have been been struck and injured by said train, you will find for the plaintiff. And you are further instructed that, in the absence of evidence or circumstances to the contrary, you may assume that if such warning by the, whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would have heard it. And,” etc.

There was a bundle of specifications of negligence in the petition, besides those set forth in the instruction, but all of them fell out of the case except (1) absence of ordinary care - in failing to keep an outlook, and (2) failing to warn decedent by bell or whistle as she was going on the track oblivious to her own danger.

There was, as said, a plea of contributory negligence. With that instruction, and the pleadings as indicated, kept in mind, attend to the facts.

At six thirty in the afternoon of a day in May, 1906, whilst yet full day, Pearl E. Keele (on foot from the north) walked to the south on a north-and-south public road in Wyandotte county, Kansas. That road crossed at right angles a cluster of, say, fifteen tracks in defendant’s yard in the country, west of the limits of a town called Argentine. The tracks in said yard ran east and west. Two of them, those to the south, were passenger tracks, the rest to the north were freight and side tracks.

A photograph in evidence shows the place, except as to cars standing on the freight tracks, to be presently mentioned. In the picture the eye looks to the west, the south side being to the left and the north to the right. We cannot do better than to reproduce it; for all sides admit its accuracy and it depicts the scene at one stroke thus:

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Bluebook (online)
167 S.W. 433, 258 Mo. 62, 1914 Mo. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keele-v-atchison-topeka-santa-fe-railway-co-mo-1914.