212 Mo. 280 | Mo. | 1908
— This suit was instituted by plaintiff in the circuit court of Carroll county to recover $5,000, under the second section of the Damage Act, for the death of her husband, Carl Ahnefeld, who was struck and killed by a work train on defendant’s railroad, near Carrollton, Missouri, on the 18th day of June, 1904. From a judgment in favor of plaintiff, defendant appeals.
The amended petition alleged that deceased at the time he was killed was walking in an easterly direction on defendant’s track, within its switch limits, at about one-quarter of a mile east of its depot at Carrollton; that the track at the point of the accident, and for a long distance in either direction, was level and practically straight, “which was uninclosed and which for many years pedestrians to and from the said town of Carrollton and the said station and depot of de
The answer, after admitting the incorporation of the defendant, and that plaintiff was the widow of the deceased, and denying the other allegations of the petition, charged that the death of the deceased, who was not connected with or employed upon the railroad, was solely the result of his own negligence in walking on the track of the defendant at a point where the same was not laid upon or along a publicly traveled road or street, or over a highway crossing, without looking and listening for the approach of trains, in violation of section 1105 of the Revised Statutes of Missouri.
The reply denied generally the new matter contained in the answer.
The facts developed at the trial on behalf of the plaintiff, were substantially as follows:
The defendant’s depot is located about a mile and a half south of the business part of Carrollton and about a half mile south of the south limits of that corporation. The main track of the railroad runs in an easterly and westerly direction and along the south side of the depot. A switch or side track leads off from the main track at a point about one-quarter of a mile east of the depot, and extends westward to and along the north side of the depot, and beyond to a connec
Deceased was a farmer who resided three or four miles west from defendant’s depot; his age was estimated by one witness as being about fifty years. On the day of the accident a primary election was being held in the little building which was used as a grain or coal office. The accident occurred about two o’clock in the afternoon. The movements of deceased and the
Witness Phil Huff testified: “I saw Carl Ahnefeld that day. I saw him as he came riding up on the north side of this office; he rode up kind o ’ on the north side and a little east, where the hitch rack was. I afterwards looked out the window on the south and saw him going around the elevator, going in a southeast direction at the time, on the railroad track. Shortly after he passed the office, I saw a train standing at the depot. It was a train of flat cars; the engine was reversed; the tender was headed east; it was a large engine and had a large tender, a high tender. I think it was known as a work train or extra. I did not hear any signals if any were given. ’ ’
Witness Ed Ferguson testified: “Saw Mr. Ahnfeld that day; he rode up there and I seen him as he went away out to the railroad track. Last time I saw him he was going south right close by the end ojj: the bridge bearing down east a little bit to the railroad. Shortly after that I saw a train on the defendant’s track; I think when I noticed it it was just pulling out up to the tank; when it pulled out they went east. The train was made up of flat cars, as I recall it. The tender was going in front of the engine; looked to me like it was a pretty good-sized tender. The engineer was on his box, but I couldn’t say that I seen the fireman. Couldn’t tell whether I noticed any coal in the tender or not. If any signal was given, any whistle blown, or bell rung when the engine pulled out from the tank, or between the guards and the tank, I didn’t hear it.”
Witness Charles Gorman testified: “I saw him ride up and come from the west and across the road running north and south there; saw him ride up to the hitch rack; the next I saw of him he was going
The train remained at the water tank but a short while, and the engine, after taking water, pulled eastward down the track with its train. The track was level and practically straight. There were no obstructions of any kind between the water tank and the cattle-guards at the east end of the switch-yards. The deceased'walked in an easterly direction to a point about two and one-half rail-lengths west of the cattle-guard at the east end of the switch-yard, where he was struck by the engine and killed while between the rails of the main track.
Witness Martha Rickert testified that she was standing at her front gate north of the switch-yard and about one-eighth of a mile east of the depot, or about half way between the depot and the cattle-guards at the east end of the switch. “I saw the man before he was killed; I saw him going down between the two tracks, between the side track and the main track. When I first saw him he was about one hundred yards from our house up the track. He was west of my house; he was in between the two tracks, walking on the plain level place between the two tracks. He was just walking along the same as any man would be walking along, and looked back a time or two, that was all. There was a work train or ballast train taking water at the tank. ‘Q. When you saw him looking back, that was when, with reference to the time the train pulled out, before or after? A. He never
Witness Trigg, who was about a quarter of a mile east of the east end of the switch limits at the time of the accident, testified: “Well, I and my son were coming up into town and we got to this place mentioned where the dike was and saw the train strike the old man. He pitched backwards and forwards; that was the last I seen of him. ‘Q. How long before the train struck him did you see him? A. Oh, I suppose a minute. ’ The old gentleman was walking on the track going east and the train was following him. He was walking leisurely along. His face was facing east. The train was approaching east. I should judge, to the best of my recollection, I saw him about a minute, or such matter, before the train struck him. When I first saw him he was right in the center of the main line, and I did not. observe anyone stationed on the lookout or front of the engine as it approached Mr.
Witness Henry Yogelsmeyer testified that he was well acquainted with deceased and that he was hard of hearing in both ears. “Had to talk loud to him to hear you, and if you didn’t talk loud he couldn’t hear; you have to talk pretty loud to talk with him.” “Q. But you could carry on a conversation with him? A. Well, yes, ¡for a little bit. ’ ’
Witness Bode, referring to plaintiff, testified: “The widow called to see me a short time after the accident and wanted me to show her where it occurred. She said she had warned him not to walk on the track that day on account of his defective hearing.”
Plaintiff offered a number of witnesses who testified, over defendant’s objection, that persons residing in the neighborhood east of the depot had for many years walked along defendant’s roadbed and track at the place of the accident in g’oing to and returning from Carrollton; such use of defendant’s track at the place in question had continued since 1868, the time the road was constructed; and that the roadbed and track of defendant for a number of years had been used by children attending school at Carrollton. Parties traveling east from the west generally entered the track at the water tank. On cross-examination these witnesses testified that in order to get on the track beyond the switch-yard it was necessary to get in at the cattle-guard or climb over the fence, and that parties using the track entered at different places along the right of way. The evidence also tended to show that a large amount of business was transacted
At the close of plaintiff’s testimony defendant requested an instruction in the nature of a demurrer to the evidence, which was by the court overruled, to which action of the court defendant excepted. The defendant declined to offer any evidence, and the cause being submitted to the jury on the evidence adduced by plaintiff and the instructions of the court, they returned a verdict for the plaintiff, assessing her damages at the sum of $5,000.
Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment being entered in conformity to the verdict, defendant prosecutes its appeal to this court, and the record is now before us for review. ”
OPINION.
The errors complained of by appellant, as disclosed by the record before us, are few, and may thus be briefly stated:
1st. That the court committed error in failing to give the instruction at the close of the evidence in the nature of a demurrer, directing the jury to find the issues for the defendant.
2d. That instructions numbered 2, 3 and 4 given by the court in behalf of plaintiff did not properly declare the law.
3d. That the trial court committed error in overruling the motion in arrest of judgment.
I.
Referring to the first assignment of error, that is, that the court erroneously refused the request of the defendant telling the jury that plaintiff under the
Upon the provisions of this section learned counsel for appellant has predicated a very strong and ingenious argument why the trial court should not have during the progress'of the trial admitted in evidence the testimony tending to show that the track of. defendant at the point where plaintiff’s husband was killed was habitually used by the public with the tacit consent of the defendant, and why the court should have at the close of the evidence directed the jury to find the issues for the defendant.
It is insisted by counsel for appellant that the provisions of the section of the statute above quoted furnish a basis upon which may be predicated a legal and conclusive presumption, and it is very ably argued, that the person receiving harm under the circumstances mentioned in the statute may not in fact have committed a trespass in walking on the track, but according to the statute he will be conclusively presumed or deemed to have committed one, in any action brought by him on account of such harm. In other words, it is insisted that the person who receives harm while walking on the track on the private right of way of the company will be d.eemed or ■conclusively presumed to
The facts developed upon the trial of this cause and upon which the court submitted the cause to the jury are undisputed. The place at and near which plaintiff’s husband was killed by the train of cars being-operated by the servants of the defendant, for more than a quarter of a century had been habitually and continuously used daily by pedestrians as a footway and by the general public in receiving- and delivering freights, and such use by the public was open, notorious and presumptively, at least, well known to and acquiesced in by the defendant. In fact it is conceded in the brief of counsel for the appellant that “the evidence shows that footmen habitually walked upon the track at the place in question since 1868, the time the road was constructed.” However, with perfect fairness to appellant’s counsel, it is well to state in making such admission he adds “and that during all that time not a single person had been injured by a train.” The evidence introduced by plaintiff also clearly shows that the track at the point where plaintiff’s husband was killed was straight and unobstructed for quite a distance, and there is no dispute that, if the defendant’s employees operating the train had been on the lookout for any person who might be upon the track, they could have seen plaintiff’s husband in ample time, had they exercised ordinary care’, to have avoided running against him with such train and killing him. The' evidence also shows, in fact it is not disputed, that the defendant’s employees did not ring the engine bell, sound the engine whistle or give any danger signal to warn deceased of the approach of the train. It may further be added that there is an entire absence from the record before us .of any disclosures that the railway company, the defendant, warned the public or protested in any way with the people generally or
Counsel for appellant, with great industry and diligent search, has collated in his brief about all the cases decided by this court in which similar legal propositions to those presented in the case at bar were disclosed by the record. In a very respectful way counsel for appellant suggest a reconsideration of the long line of cases in which the proposition confronting us in the case at bar was fully treated and disposed of. As a basis for the request of reconsideration, it is suggested that the statute upon which appellant’s counsel now predicates his insistence, was never carefully or at least correctly considered and interpreted by this court.' It is further suggested that the two divisions of this court have erroneously decided this proposition, and moreover that such divisions are not in harmony in announcing the rules applicable to the propositions now in hand, and counsel undertakes to point out the conflict between the two divisions of this court upon the proposition with which we are confronted in the case at bar.
With due respect and consideration for the learning and ability of counsel discussing the propositions
In dealing with business enterprises, the operation of which is necessarily attended with danger to human life, the law very properly manifests its high regard for the preservation of the citizen from injury by reason of the operation of such enterprises, and the rules of law applicable to the care and caution to be
As applicable to the operation of railways in this State we have carefully analyzed the rules announced in the cases to which our attention has been directed concerning the duties of the operatives where they have reasonable ground, at any point along the line of railway, to expect or anticipate the presence of persons so near the railroad track as to endanger them. In our- opinion there is substantially no conflict in the cases, and the rules announced are proper, reasonable and just rules upon that subject. To hold otherwise, would, in- our judgment, be an absolute abandonment of some of the fundamental purposes of government, that is, the preservation of human life and the pursuit of happiness. We see no valid .legal reason for departing from the rules announced.
Our attention is particularly called to the employment of certain language in the different divisions of this court. It is pointed out that in Division No. 1 in Frye v. Railroad, 200 Mo. l. c. 400, the court used
The fundamental error assumed by this argument is in overlooking the main fact upon which the principle is predicated, that is, where the public have been
In Fiedler v. Railroad, 107 Mo. l. c. 651, it was expressly ruled by this division of the court that if the person killed was even a trespasser yet if at the point where the person was killed, and at the hour that the train passed at that point which caused the death, a
To the same effect is the comparatively recent case of Frye v. Railroad, 200 Mo. l. c. 400, where this rule is again fully recognized. It was there said: “Where the general public have been invited to use the track by the tacit consent and long acquiescence of a railroad company in permitting the open, known, free, continuous, and extensive use thereof by footmen, then it owes a duty to each footman to use ordinary care to look out for him.” It will be observed in that case that the language employed construes the tacit consent and long acquiescence of the railway company in permit
We have no apologies to make for the rule announced by this division in Fearons v. Railroad, 180 Mo. l. c. 222-223. The rule was announced in that case in this language: “Whenever the motorman or engineer, in the operation of its cars, before reaching a point along the line of its railway, has reasonable grounds to expect or anticipate the presence of persons so near the railroad track as to endanger them, then the law, through its high regard for the preservation of human life, requires and demands such operatives to be on the alert, and keep a lookout for the, realization of the anticipation or expected presence of the person. . . . And even though the persons be trespassers, it does not relieve those in charge .of the moving cars from keeping a careful lookout for the persons so expected to be present at that point.” The rule in that case as to being applicable to trespassers, was predicated upon the case of Fiedler v. Railroad, supra. The rule announced in both the Fiedler and Fearons eases has met the .approval of both divisions of this court, as well as court In Banc. „
To the same effect is the case of Eppstein v. Rail
We see no necessity for pursuing this subject further. In our opinion there is no principle which has been in judgment before this court in which the final conclusions announced have been more uniform and harmonious than the one involved in the case at bar. We repeat that, in the discussion of the facts disclosed by the record in the respective cases, there may be shades of difference in the language employed giving expression to the views of the court, yet a careful analysis of all the cases will indicate absolute harmony in the announcement of the principle predicated upon the overshadowing fact disclosed by the record in the respective cases that there was reasonable ground for the operatives of the railway at the point where the accident occurred, by reason of the continued use of such railway track by the public, to expect or anticipate the presence of persons at such point on the line of railway. It is sufficient to cite the cases which have fully recognized this rule: Morgan v. Railroad, 159 Mo. 262; Eppstein v. Railroad, 197 Mo. 720; Frye v. Railroad, 200 Mo. l. c. 400-401; Chamberlain v. Railroad, 133 Mo. 587; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Fearons v. Railroad, 180 Mo. 208; Sites v. Knott, 197 Mo, l. c.
Complaint is made that both divisions of this court and court In Banc have failed in treating of the propositions involved in this case to carefully analyze and properly interpret the provisions of section 1105, Revised Statutes 1899. In the case at bar, in compliance with the earnest request of learned counsel for appellant, we have carefully analyzed the provisions 6f the statute invoked as a basis of defense in this action. In our opinion, the right to invoke the provisions of this statute must be determined by the facts and circumstances surrounding the particular case. In other words, we are unwilling to say that this statute is absolute and furnishes a conclusive presumption that persons who go upon a lije of road at such points as are designated by the statute, are conclusively presumed to be guilty of trespass, and that no state of facts can serve to qualify the right of a railway company to invoke the provisions of that statute in defense of actions brought by persons who have been injured upon its line of roafl. There are numerous instances in which the provisions of this statute are peculiarly applicable, and this court has never failed to strictly apply them where the facts developed at the trial authorized the application of such provisions, notably the cases to which appellant directs our attention, Barker v. Railroad, 98 Mo. 50, and Rine v. Railroad, 88 Mo. 392. The facts'‘developed in those cases brought them strictly within the purview of the provisions of the statute to which our attention has been called. But, as was ruled in the Morgan case, if the railroad company, as the evidence tended to prove in that case, for more than twenty-five years acquiesced in its tracks being used as a footpath by the whole community, it should not be permitted, if persons are injured by reason of the fact that the operatives of
The cases to which our attention has been directed, in which the rule involved in the case at bar was not applied, in our opinion do not conflict with the other long line of decisions to which we have directed attention. They were simply cases in which the facts developed at the trial did not call for or justify the application of the rule. The cases which may apparently be in conflict have repeatedly been distinguished and differentiated by this court, and in our conclusion of the discussion of this proposition we simply repeat what was said in the Fearons case:‘ ‘ The principle involved in the case a bar is by no means a new one in this State. This court, in a number of cases, has given expression in no doubtful terms to its views upon this subject. A careful examination of the Missouri cases, where similar questions have been involved, will demonstrate clearly a line of demarcation between the two contentions. The doctrines announced in the two lines of decisions are not in conflict; but the principles are correctly declared, as ap
II.
Complaint is made by appellant predicated upon instructions numbered 2, 3 and 4, given in behalf of the plaintiff. We shall not undertake to discuss in detail the criticisms of these declarations suggested by counsel for appellant that these instructions should be subjected to. It is sufficient to say that we have carefully read and re-read them, and while they may be susceptible of some verbal criticism, in the main they are similar to the instructions given in the Morgan and Eppstein eases, and in our opinion did not in any way mislead the jury, and there is nothing in them, nor is there any substantial omission, which would constitute reversible error.
III.
This brings us to the final contention of appellant, that the motion in arrest of judgment interposed by-the defendant should have been sustained by the trial court. This insistence is predicated, as asserted by counsel, on the insufficiency of the allegation in the petition respecting the user of the track by pedestrians. This allegation was substantially as follows: “And which track for many years pedestrians to and from the said town of Carrollton and the said station and depot of defendant at said town of Carrollton had been accustomed to use as a road or footpath by the forbearance and tacit consent of the defendant.” As sustaining this proposition we are cited to the case
There is no dispute as to the use of defendant’s track at the point where plaintiff’s husband was killed, as a passway or footpath by the public generally. This use had been open and continuous for more than a quarter of a century, and we are of the opinion that the most ordinary care and prudence would require the operatives of the road at that particular point, in view of the long use of the track by the public, to keep a lookout for persons who might be near the track, and if occasion requires give appropriate signals of danger. This in our judgment is not an unreasonable requirement of the law, and the failure to comply with it should be held to constitute such negligence as would authorize a recovery under the circumstances as clearly appear in the development of the facts in the trial of this cause.
The presentation of this cause to this court, both in oral argument and in the exhaustive briefs filed by the