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Matz v. Missouri Pacific Railway Co.

117 S.W. 584, 217 Mo. 275, 1909 Mo. LEXIS 276
CourtSupreme Court of Missouri
DecidedMarch 9, 1909
StatusPublished
Cited by5 cases

This text of 117 S.W. 584 (Matz v. Missouri Pacific 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
Matz v. Missouri Pacific Railway Co., 117 S.W. 584, 217 Mo. 275, 1909 Mo. LEXIS 276 (Mo. 1909).

Opinion

[280]*280IN BANC.

PER CURIAM:

The opinion of Graves, J., in Division is adopted as the opinion of the Court in Bane.

All concur except Lamm, J., who is of opinion that the case should be reversed, but should also be remanded rather than reversed outright.

IN DIVISION ONE.

GRAVES, J.

The plaintiffs, who are husband and wife, bring this action for the alleged negligent killing of their child, Carl Matz. By the petition, it is charged that the child, a boy over ten years of age, was killed by a Missouri Pacific east-bound passenger train near the intersection of Chestnut and Guinotte avenues in Kansas City, Missouri, at about 5:30 p. m., August 3, 1904.

It is charged that this portion of plaintiff’s railroad track had been continuously used for a long period of time by pedestrians, and that such use was well known by defendant. For negligence, the petition charges (1) a violation of a speed ordinance of Kansas City, which ordinance limits the speed of trains at street crossings to six miles per hour; (2) reckless and dangerous rate of speed in a thickly populated portion of the city; (3) the failure of defendant to protect deceased whilst in imminent danger, when by the exercise of ordinary care and caution, the servants of defendant would have seen him in such peril, in time to have avoided the injury either by stopping or slowing the train or by sounding the whistle, or ringing the bell, neither of which was done. This last portion of the petition fully and explicitly pleaded the necessary elements and facts for the application of the humanitarian doctrine.

[281]*281Answer was a general denial and plea of 'Contributory negligence upon the part of deceased.

For the plaintiffs, the canse was submitted solely on the humanitarian rule, as appears by the following instruction:

“The court instructs the jury that if you believe from the evidence that the defendant on the afternoon of August 3, 1904, ^operated a certain engine, tender and train of cars, by its servants, agents and employees upon and in charge thereof, upon its railroad over and across a certain public street and thoroughfare in Kansas City, Missouri, known as Chestnut avenue, at or about the place where said avenue intersects a certain street or avenue in Kansas City, Missouri, known as G-uinotte avenue, and that Carl Matz was the infant unmarried son of the plaintiffs herein, and that plaintiffs were husband and wife, and that he, the said Carl Matz, was upon the railroad track of the defendant in front of said engine, tender and train of cars, and upon the same track as said engine, or near thereto, and in a position of danger and peril from said approaching engine and train, and that the agents, servants and employees of the defendant in charge of said engine and train saw, or by the exercise of ordinary care might have seen him, the said Carl Matz, upon said railroad track or near thereto, and in a position of danger and peril from said approaching locomotive and train, in time, by the exercise of ordinary care, to have avoided any injury to him, and they failed to exercise ordinary care to avoid injuring him, and by such failure to exercise ordinary care they caused or permitted said locomotive to run upon and against the said Carl Matz and to injure him, and that he died as the result of such injuries, then your verdict should be for the plaintiffs in the sum of five thousand dollars. ’ ’

The instruction is but a slight modification of one asked by plaintiffs. They asked but one instruction, [282]*282so that their theory of the case is clearly outlined in the instruction above, for the slight amendments made by the court do not change the theory.

At the close of plaintiff’s case the defendant asked an instruction in the nature of a demurrer to the evidence. This the court refused. At the close of the whole case, the defendant asked some five instructions, two of which were given and three refused, but did not ask an instruction in the nature of a demurrer to the evidence at this time. This we deem unimportant as the defendant introduced no evidence which would aid in the least the case made by plaintiffs. ■ Verdict and judgment went for plaintiffs in the sum of five thousand dollars and defendant brings the case here. In the brief it is strenuously insisted that there is no case to go to the jury and the demurrer should have been given.

The locus in quo is fully presented by a plat in evidence, which we attach and use to lend us assistance in- detailing the facts. The plat is shown on the opposite page.

The plat does not specifically so show, but the evidence does show, that the streets running north and south, indicated both to the east and west of the Perd Heim Brewing Company property, are continuations of Uuinotte avenue. The south line of the Heim’s property is the line indicated by the word “fence,” so that Guinotte avenue is upon three sides of the Heim Brewing Company property.

The deceased, Ottis Rich, Lonnie McCall and George Kumpf, all about the same age, had been at a pond north and east of the brewery property. In the crowd was a little girl who did not testify. With them upon their return from the pond was Alex Kumpf, father of George. They came from the north on the east side of the brewery property, to the comer on the plat

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Cite This Page — Counsel Stack

Bluebook (online)
117 S.W. 584, 217 Mo. 275, 1909 Mo. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matz-v-missouri-pacific-railway-co-mo-1909.