Sites v. Knott

96 S.W. 206, 197 Mo. 684, 1906 Mo. LEXIS 58
Supreme Court of Missouri·Decided June 20, 1906·Published·Cited by 5 cases

Opinion

FOX, J.

This cause is here upon appeal by the defendants from a judgment of the circuit court of Jackson county, Missouri. This is an action brought by the widow of ‘William R. Sites to recover the statu[688] tory penalty on account of the death of her husband, who was killed on September 6, 1901, at about 4 o’clock in the afternoon, by being crushed between the draw-heads of two freight cars in thé yards of the Chicago & Alton railroad company, located in what is called East Bottoms in Kansas City, Missouri. Deceased was a mail carrier and had been on the same route for two months prior to his death, crossing at or near the point where he met his death, three times a day. That portion of the Alton yards in question lies between Gillis street on the west and Lydia avenue on the east, a distance of a little over a quarter of a mile. Throughout this distance the yards are not intersected by cross-streets on account of the high bluff ranging from 20 to 50 feet inheight on the south, which begins just west of the gas works at Gillis street and extends east nearly to Lydia avenue. Between this bluff and the south side of the tracks are four small houses; the one farthest west belongs to Mrs. Rodes; just across the tracks to the north is the Zenith mills; between the Rodes house and this mill is the point of the accident. East of this mill lies the property of the Bolen ■ Coal Company. Within this space and north of the tracks there are also some other business houses, offices and the residences of three or four other families. Between 10 and 150 feet east of the Rodes cottage, in the gulch or draw in the bluff, is located a spring, which is frequently used by people in the neighborhood. At the point of the accident, between the Rodes cottage and the Zenith mills, the Alton’s tracks are arranged as follows, beginning on the south: First, the “mud track” (used for storing cars); second, the Kansas City Suburban Belt receiving track. These two tracks are connected by a switch at the west end of the Rodes cottage. Third and fourth, Alton main tracks (kept free to permit passage of trains). Fifth, the Kansas City Suburban Belt delivering tracks. Sixth, Zenith mill track. (Tracks five and six are connected at the point marked “K” on [689] the plat). The location of these tracks is fully shown on the plat. The west end of these yards in question near G-illis street is the connection of the Chicago & Alton and the Suburban Belt —■' that is, the point where deliveries of cars are made to and from one road to the other. The Alton sets all cars which it has destined for the Belt on track 2, and the Belt Company places its cars for the Alton on track 5. Each road gets the cars thus set to it at certain intervals, suiting its own time and convenience.

The negligence complained of in this action is embraced in the following part of the petition filed by the plaintiff, which is as follows:

“That defendants are and at all times herein referred to are and have been engaged in the business of running, conducting, managing and operating all of the railroad property, locomotives, cars, trains, and rolling stock of the said railroad heretofore and now commonly known as the railroad of The Kansas City Suburban Belt Railroad Company, and that part of the said business of the defendants is and was during all of said period to transfer cars of various railroad companies from one track to another and from one locality to another in Kansas City, Missouri, on tracks owned or controlled by them, or other persons or corporations, and on and from those certain railroad tracks extending in an easterly and westerly direction across Troost avenue south of the Zenith mills, near First street, in said city, which said Troost avenue is a public street in said city, which said place is a populous and thickly-settled locality in the vicinity of which are many dwellings, mills and factories, and that at or near the intersection of the west line of Troost avenue with said tracks, a great number of people are and were at the time herein referred to and for a long time prior thereto accustomed to and did daily dross the said tracks, of all of which facts defendants through [690] their servants and agents in charge of their said railroad, engines and cars, had notice; that at all times herein referred to the said 'William R. Sites, while engaged in the service of the United States Government in carrying and delivering mail to the residents and persons engaged in business at or near the intersection of said railroad tracks with the west line of Troost avenue in said city, was accustomed to and did as one of the public daily cross the said railroad tracks at and near the west line of the said Troost avenue and where the public were accustomed to and did cross as aforesaid, and on or about the 6th day of September, 1901, he did, while so engaged in his said business and while in the exercise of ordinary care, attempt to cross said tracks at or near the intersection thereof with the west line of Troost avenue, and in so doing did attempt to pass between certain stationary freight cars which were then on one of said tracks hut separated so as to allow foot passengers to pass between them; that other persons at the same time and immediately prior to the said attempt of said William R. Sites, with the knowledge of defendants through their servants and agents, had been and were passing between said cars, and the defendants ’ servants and agents while in charge of and running and managing a certain locomotive engine then being managed and operated by the defendants through their said servants and agents negligently and carelessly ran the said locomotive engine against the said ears standing west of the point at which said William R. Sites attempted to cross said track and drove them suddenly upon the said William R. Sites and caught and crushed him between said cars as he was attempting to cross said track as aforesaid and thereby mangled and injured him, which said injuries thereafter and during the same day caused his death, and without ringing any bell, or blowing any whistle, or giving any warning of the approach of the said cars or locomotive engine, and when they, the said servants and agents [691] of defendants, whilst running, conducting and managing the said engine and cars, saw said William R. Sites in a place or danger, or when by the exercise of ordinary care, they could have seen him in such place of danger in time, by the exercise of ordinary care to have avoided injuring him. That by reason of the premises, plaintiff has been damaged in the sum of five thousand dollars.”

The answer consists of a general denial and a plea of contributory negligence. There was no testimony introduced on the part of the defendants. The testimony of the various witnesses introduced on behalf of the plaintiff was substantially as follows:

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Sites v. Knott, 96 S.W. 206, 197 Mo. 684, 1906 Mo. LEXIS 58 (Mo. 1906).

96 S.W. 206 (Sites v. Knott) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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