272 Mo. 142 | Mo. | 1917
This is an action brought by an administrator for damages for the death of one Arthur Beard, alleged, to have been caused by the negligence of the defendant. The cause of action arose in Lafayette County, where the suit was instituted, but upon a change of venue it was tried in Saline County, resulting in a majority verdict for defendant, from which plaintiff appealed.
The spur track upon which the killing occurred had been built and was then being used by defendant to connect its main line with certain coal mines located about two and one-half miles south of the city of Lexington. The deceased was a miner and was en route from the mines to his home when killed. The tracks run north and south at the place where the killing occurred. About 200 feet south of where the body of the deceased was found a public road crossed the tracks. No bell was- rung or whistle blown when the train crossed this road. Seventy-five feet further south the switch or s-pur track leaves the main track in a southeasterly direction. The train before backing down upon the deceased, stopped just north of the divergence of the switch track from the main line. Many miners and others lived in .the immediate neighborhood. In the middle of the spur track there’ was a beaten path
It was snowing and the wind was blowing from the north at the time of the killing. The last time the deceased was seen alive was four or five minutes before he was killed; he had just left the mine where he had been at work and was walking with his dinner bucket in his hand in a northerly direction in the middle of the spur track. Persons who first arrived upon the scene saw the tracks of one person between the rails in the snow leading northward from the public crossing to the place where deceased was struck; this place was located by the tracks of the person terminating abruptly, followed by marks in the snow as though a body had been pushed along from that point with the toes dragging on the ground. Following this the snow had been rubbed off of the west rail, and from thence to where the body was found the rail was smeared with blood and pieces of flesh for a distance of about 120 feet. Witnesses for the plaintiff testified a specifically in regard to this phase of the case as follows: “We found his tracks right there where he had been walking down the middle of the track right between the rails. We noticed where he was struck. We could tell from his toe prints where the train hit him. The train just raised him up and dragged him along for about ten feet and there were no marks at all after that until where he hit the rail on the west side. It looked there like somebody had been drug and then on the first joint was where the flesh and
This rule of the defendant was introduced in evidence: “102. Where cars are pushed by an engine (except when shifting and making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need. ’ ’
The theory of the defense is that the deceased was not walking between the tracks- when killed, but that .he was outside of the rails, and the inference deduced, in the absence of testimony, from the statements of the engineer and brakeman, because they state they did not see him, is that he was not struck while walking between the rails, but while on one side of the track in an attempt to climb on one of the cars. The testimony of the engineer in this regard is that he was sitting m the cab of the engine when the accident occurred and in looking out .over the ten cars he could see fifty or seventy-five feet ahead of the last car but saw nothing on the track. The brakeman, who was at the time on the ground going back towards the engine, also says he saw nothing on the track. His testimony in this regard is contradicted by a witness for the plaintiff who testified that the brakeman told him immediately after the occurrence that he had “seen a man on the track in front of the cars who suddenly disappeared and he didn’t see him any more until his dinner bucket rolled out and he looked and saw his body on the track. ’ ’
The conductor, who was apprised of the killing by the brakeman after the latter had jumped from the train, stated on direct examination that he noticed at the crossing where a man had come off of the side of the road and started down on the outside of the track; that these tracks extended down about 150 feet from the crossing where they turned in directly towards the track. There the snow was raked off of the outside of the rail for about fifty feet from where the body of the deceased was
A synopsis of the pleadings will enable the issues submitted to be more readily understood.
Following the usual formal allegations necessary in a case of this character the petition alleges the frequent use by pedestrians of the spur track on which the killing occurred, defendant’s consent to such use, the negligent killing of the deceased by the backing of defendant’s ears down upon him while he was walking northward on the track unaware of the approach of the train; that through the exercise of ordinary care on the part of the defendant’s employees operating the train they could have become aware of the presence of the deceased on the track and have thus averted striking and killing him; that they negligently failed thus to do and thereby caused his death; that they failed to sound the usual or ordinary signals in time to avert the killing of the deceased in that they did not at any time sound the whistle or ring the bell or give any other signal by which the deceased might have been warned of the near and dangerous approach of the train; and that they failed to have stationed at the front end of the foremost ear going northward on said train at the time of the killing a brakeman or switchman to be on the lookout for persons on the track so that the engineer, thus informed, might have been enabled by stopping said train to have averted injury to persons on the track as required by the rules of said company, and that the train was not equipped with air-brakes connecting the ears with the engine with a whistle attached so that the train, might be stopped in time to avert injury to persons on the track; that the train was not being operated with a sufficient crew as required by law and by reason of its negligent and careless operation by defendant’s employees and their failure to comply with defendant’s own rules and
After a general denial the answer avers that the deceased went upon defendant’s property as a trespasser and that his death was due solely to his own negligence in so doing; and that he disregarded his own safety by placing himself in a position of peril with reference to defendant’s moving train where he well knew he was in great danger of being injured and killed, all without the knowledge or negligence of the defendant; that the death of the deceased, who was at the time a trespasser, was the result of his own negligence in placing himself in-dangerous proximity to defendant’s moving train, as defendant avers and believes, in his attempting to climb upon said moving train without the knowledge and consent of the defendant and without negligence on its part. This is followed by counts alleging the unconstitutionality of Section 5425, Revised Statutes 1900, not here insisted upon as error.
The reply was a general denial.
The instructions given at the instance of defendant, of which complaint is made, are -as follows:
“2. The court instructs the jury that the burden is on the plaintiff to make out his case to your reasonable satisfaction by a preponderance of the evidence. And if you are unable to determine from the testimony and all the facts and circumstances in evidence whether the deceased, Arthur Beard, was struck by the defendant’s train while walking on the track, and that the defendant’s employees saw, or by the exercise of ordinary care, could have seen him, and that they discovered or by the exercise of ordinary care could have discovered that he did not intend to step aside before the train struck him, and after discovering that he did not intend to so step aside, could have stopped the train in time to avoid striking him, or whether he fell or was thrown under the train while áttempting to climb thereon, then your verdict must be for the defendant.
*152 “3. The court instructs the jury that if you find and believe from the evidence the death of Arthur Beard was the result of mere accident, then your verdict must be for the defendant.
“4. The court instructs the jury that if you believe and find from the evidence that the deceased, Arthur Beárd, attempted to climb upon the defendant’s train for the purpose of nding thereon, and that in doing so he fell or was thrown under the wheels of the same and killed, then your verdict must be for the defendant.
“6. The court instructs the jury that there is no liability on the part of the railroad company from the mere fact, if you find it to be a fact, that one- of its cars struck the deceased while he was walking on defendant’s track, nor is there any presumption that the defendant of its employees were guilty of any negligence because of the fact that the deceased was struck by one of its cars, for it was the duty of the deceased to look for approaching trains and to take all possible precautions for his own safety. ’ ’
that 150 feet south of where the killing occurred there was a public crossing over -defendant’s track, and the trial court, acting evidently upon the theory in the exclusion of the proffered testimony that it should be limited in behalf of persons about to use, using or who had just used this crossing, held, under a number of authorities here and elsewhere (Stillson v. Railroad, 67 Mo. 677; Bell v. Railroad, 72 Mo. l. c. 58; Dahlstrom v. Railroad, 96 Mo. 101; Burger v. Railroad, 112 Mo. 246; Everett v. Great Northern Ry. Co., 100 Minn. 309; Randall v. Railroad, 109 U. S. 478; Gibson v. Leonard, 143 Ill. 182, 17 L. R. A. 588), that the testimony was inadmissible. From the above citations we have excluded those in which the injured party was an employee of the defendant.
Modifying facts, however, impose a duty upon the defendant in addition to that required by the statute (Sec. 3140). While the defendant’s track did not at the point where the deceased was injured run through a town, the vicinity was thickly settled on each side of the road and like physical reasons existed for the giving of such signals as aré necessary in a city or town; there was no fence enclosing the right-of-way -and the use of the middle of the track each day by hundreds of pedestrians had been acquiesced in for years by the defendant. The track was a switch or a spur, not a part of the main line. It was used incidentally for the public convenience but principally to enable the defendant to transport coal from the mines to its main line. Trains did not run over this spur at regular intervals and hence the public could not know when the track would be occupied. The infrequent operation of trains thereon naturally lessened the apprehension of danger which otherwise might have been felt by persons using- the track as a footpath and as a consequence rendered its use for that purpose more general. None of the convincing facts existed which would have authorized the defendant to expect a clear track as the same is defined
The acquiescence of the defendant for years in the use of. its track by pedestrians raised the presumption that the operatives of its train knew of such use at the point where the deceased was killed. He was, therefore, not to be regarded as a trespasser in so using the track and the defendant owed him the duty of exercising every reasonable precaution to avoid injuring him. [Frye v. Railroad, 200 Mo. 377, 98 S. W. 566, 8 L. R. A. (N. S.) 1069; Ahnefeld v. Wahash Ry. Co., 212 Mo. 280, 111 S. W. 95; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S. W. 967; Hufft v. Railroad, 222 Mo. 286, 121 S. W. 120; Cotner v. Railroad, 220 Mo. 284; Burger v. Railroad, 112 Mo. 246.] One of these precautions, in addition to keeping a lookout for his presence on the track, was that it use the resonant warnings, to-wit, the bell or whistle, with which its engines are equipped. There was no defect in any of the physical senses of the deceased. Walking away from the train he could not see it; but being only 150 feet distant from the point where the train ran upon the track most used by pedestrians, if either the bell had been rung or the whistle sounded it is reasonable to conclude that he would have heard it and this calamity would have been averted. Testimony, therefore, as to whether or not this precaution was ' used is relevant to determine if the defendant was in this regard negligent; the trial court, therefore, erred in its exclusion.
When the Hinzeman case was here on a second appeal (199 Mo. l. c. 64), in discussing the duty devolving on a defendant to use every reasonable precaution to avoid an injury, we said that an instruction was erroneous which limited the duty of the defendant in the emergency named to stopping the train, and if the peril was discovered too late to accomplish this end the defendant was not liable. This we held left out of view the sounding of the whistle, which under the plain evidence was an obvious duty. Its use under such circumstances is emphasized in the holding that the ringing of the bell alone may not suffice. It is true in the instant case that the conductor and brakeman state that they did not see the deceased before he was struck, but the fact of their failure to see him did not lessen their duty to use every reasonable precaution to prevent injury to anyone who might be upon this frequently used portion of the track. Under such circumstances the failure to ring the bell or sound the whistle was negligence and it was proper that the jury be so instructed.
Instruction numbered 3, given at the instance of the defendant, is also assigned as error. Under a proper state of facts an instruction is proper which authorizes an acquittal if the jury believe that the injuries sustained were the result of mere accident. Some of the cases cited by defendant in this regard are of this character, others are to the contrary. Where, as in the instant case, the death of the deceased was caused either by the negligence of the defendant or by that and the contributory negligence of the deceased, there is no authority for the giving of this instruction. [Simon v. Railway Co., 178 S. W. 449.] In this case Roy, C., carefully reviews the cases pro and eon on this subject.
Defendant’s instruction numbered 4 is erroneous for the same reason which led to the condemnation of the
Instruction numbered 6, given at the instance of the defendant, is erroneously based upon the assumption that the deceased was a trespasser at the time he was killed and the liability of the defendant is as a .conseIquence improperly limited.
In view of what has been said it is not necessary to discuss the question as to whether the defendant was negligent in not having some one on the lookout on the last car of the train during the entire time that the train was backing over the frequently used portion of its track. This would have been not only in conformity with defendant’s own rule, but the employment of ordinary care' not shown to have been exercised when only one brakeman was on the rear end of the front car setting brakes until a short time before the deceased was struck, when he, the brakeman, jumped off to throw a switch or cut .out the engine, at which time the deceased was run down and killed.
From all of which it follows that the judgment of the trial court herein should be reversed and remanded that the ease may be tried in accordance with this opinion. It is so ordered.