SARAH ENGLISH, Executrix of the Estate of JOSEPH MULHOLLAND, v. WABASH RAILWAY COMPANY and AUGUST HESTLER, Appellants.
Division One
July 30, 1937
108 S. W. (2d) 51 | 341 Mo. 550
HYDE, C.—This case, recently reassigned to the writer, is an action for damages for personal injuries. Plaintiff was struck by a train while walking on the Wabash tracks. Plaintiff had a verdict for $20,000, against both the Railway Company and its engineer, from which they have appealed. Plaintiff died after judgment, and the cause has been revived in the name of his executrix, but we will refer herein to plaintiff, in our statement of facts, meaning the original plaintiff.
The section men were working around the curve about 800 feet beyond the farm crossing. They were removing old cinder ballast and raising the tracks in preparation for putting on new rock ballast. Two of the section men said that they saw plaintiff walking in the middle of the track before he reached the farm crossing. One of them, Smith, said that he saw plaintiff walking east six to ten feet west of the farm crossing and about 700 or 800 feet from where he was working; that at that time he saw the train west of him about 150 to 200 feet; that he continued to look at it two or three seconds
Defendant engineer was put on the witness stand by plaintiff for examination under the rules of cross-examination. He said Excelsior Springs Junction was the first stop after leaving Kansas City and that he had orders to reduce speed at the mile post west of there on account of men working on the tracks. He said he was looking for the flagman and when he saw him slowed down to about fifteen or twenty miles per hour; that he released the air, shut off steam, and was drifting on down towards the point where the men were at work. He said that when he saw the flagman he gave two short blasts of the whistle in recognition of his signal and that as he passed him the flagman yelled “look out for the section gang.” The flagman was about a quarter of a mile west of the farm crossing. The engineer said that as he was approaching the farm crossing he was running twelve to fourteen miles per hour and that he could have made an ordinary service stop in forty to fifty feet and an emergency stop in twenty-five to thirty feet. He was not able to see the section men at work until he got near the farm crossing (about 200 feet) because of the farm buildings. He said that after he came around the first curve he had a clear view of the track for about a quarter of a mile
Defendants’ evidence was that plaintiff was found about 150 feet east of Grubbs crossing eight or ten feet from the track; that the section men could hear the train whistle for Missouri City, heard also two torpedoes exploded by the flagman, and two blasts of the whistle to answer the flagman; that the train was running eight to ten miles per hour at Grubbs crossing; and that a dark object was seen to fall from it (back of the tender) after it passed the crossing. Defendants’ flagman said that plaintiff came to where he was stationed on the track and stopped and talked for about three quarters of an hour. He said that plaintiff told him he was going to Lathrop, where his sister lived (which he could do by going east to the Santa Fe instead of west with the section men); and that plaintiff said: “I believe I‘ll catch this train if you slow it down slow enough.” Defendants’ theory was that plaintiff fell while attempting to board the moving train. Plaintiff, on cross-examination, said: “I do not remember whether I saw a man there flagging trains or not. . . . I may have had a conversation with him but whether I did I do not remember.” Plaintiff, in rebuttal, however, positively denied that he ever said he was going to jump on the train, and denied that he did attempt to do so.
Defendants’ first contention on the demurrer to the evidence is that there is no evidence that the engineer actually saw plaintiff on the track in a position of imminent peril and oblivious thereto in time to have thereafter prevented his injury. It is true that there was no direct evidence that the engineer saw plaintiff. However, there was the following circumstantial evidence. Plaintiff said he walked right down the middle of the track, at least, all the way from the point where the flagman was stationed on the first curve to the farm crossing, without looking back and without seeing or hearing the train until about the moment it struck him. Two section men said they saw him just before he reached the crossing walking with his back to the train which they saw from 100 to 200 feet behind him. Grubbs also said he saw plaintiff on the track and saw the train approaching him from behind until both passed out of his view near the crossing. After the train passed the first curve, the engineer had a clear view all the way to the crossing, and when it reached the point where the section men said they saw both plaintiff and the train, he could see more than a quarter of a mile beyond it. The engineer said that he had orders to look out for the section crew on the tracks; that the flagman also told him to look out for the section men; that he was looking out in the direction of the crossing, with
In similar situation this court said:
“It is a general rule established in this State that to look is to see. That has been applied particularly to the one guilty of contributory negligence in crossing a railroad track in front of an approaching train in plain sight. There is no reason why that should not apply to operatives of a train when approaching a person in danger on the track. If the defendant‘s witnesses had not testified upon this point and we had only the evidence for the plaintiff to the effect that he was on the track while the train was coming several hundred feet, where he could plainly have been seen by the operatives of the train, where they had reason to expect some one to be on the track, and where it was the standing order for them to keep the bell ringing as they approached, certainly it would be a question for the jury whether they saw Beck during that approach. The fact that they testified they did not see him, testimony which the jury were not obliged to believe, does not destroy the inference they might draw from these facts. That is to say, if a prima facie case is made out upon a point, that prima facie case is not destroyed by evidence of the other side to the contrary.” [Beck v. C., R. I. & P. Railroad Co., 327 Mo. 658, 37 S. W. (2d) 917:] (In short, evidence of looking is circumstantial evidence of seeing.)
Defendants’ second contention on the demurrer is that plaintiff‘s testimony was unreasonable, unbelievable, and contrary to physical laws. Part of this argument involves the weight and credibility of evidence. We have never ruled that a judgment would be reversed on appeal for these reasons because under our system of procedure such matters are left to the trial court. [Dunn v. Alton Railroad Co., 340 Mo. 1037, 104 S. W. (2d) 311.] The argument on impossibility is that the train was moving too slowly to knock plaintiff eight or ten feet off the track where he was lying after it passed. Plaintiff‘s
Defendants also assign error in plaintiff‘s Instruction No. 3. This was plaintiff‘s main instruction, which authorized a verdict if the engineer “saw or by the exercise of ordinary care on his part could have seen plaintiff on said track” in a position of imminent peril in time to have prevented his injury by warning, slackening speed, or stopping, if the jury further found that, at the place where such imminent peril arose, defendant “could reasonably have expected to find persons on said track at said place on account of the continuous use thereof” by the public as hypothesized in this instruction. Defendant contends that the pleadings did not authorize this submission. While the petition does definitely allege that plaintiff was seen by the engineer and does not clearly show that any other separate and distinct theory of recovery was relied upon, we prefer to dispose of this matter upon the evidence (which came in without objection) rather than upon the ground that this instruction was broader than the pleadings. Plaintiff‘s evidence on this issue showed the following facts: Missouri City and Excelsior Springs Junction were three miles apart and the Grubbs farm was about half way between. There was a public road which paralleled the railway right of way on the north all the way between these two stations, and the railway maintained a fence between this road and the tracks. The Missouri River was on the south side of the tracks until they curved around the Grubbs farm buildings, which the railway owned and leased to Grubbs. Land on the north side of the public road was owned by Grubbs. There was no fence for about a half mile east of Missouri City but there were stock pens and a side track at the east side of the town. Plaintiff‘s pictures show a fence north of the tracks at the Grubbs farm. There were no cattle guards between Missouri City and the Grubbs farm and no signs prohibiting walking on the track. The public road was not oiled or surfaced in any way in 1924. It would be muddy in wet weather and got dusty when it was dry. All passenger trains stopped at the Junction but only one or two a day stopped at Missouri City, so that people would walk between these stations to and from the fast trains. Some used the public road and some used the railroad tracks.
The character of the use of the tracks shown by plaintiff‘s witnesses (undertaking to avoid repetition about matters related by many) was as follows:
“(Fancher) During the course of some thirty odd years that I have lived here in Missouri City, I have observed people, pedestrians or
“(Merens) Between Missouri City and Excelsior Springs Junction, and particularly as far east as Ralph Grubbs’ home, people use the railroad track to walk up and down the track; like, especially, here so many people come down and just walk the railroad track to see the river. . . . I see them every day. . . . People who want to use the track, going to and from the farms, or when the weather is bad, use the track at various times, just—it‘s no particular hour or—people just use the track as they please. . . . Especially in bad weather, farmers use it to walk to town on and people just use it; a lot of people live here in town that work east of here, at various times. Especially in harvest time, why, they use the railroad track a great deal. That‘s the men that they hire, you understand, that come down to help shock wheat or hay or gather corn. . . . They have used the regular track, 30 years or more. . . . The right of way is fenced from the stock track east but there‘s no right of way fence along from west of my place there up practically to the city limits. . . . They cut these local trains off here, the people have to go to the Junction to catch No. 3 to Kansas City, now, you see. That‘s the time of day you see them using the track. It isn‘t every day that people go from Missouri City or come into Missouri City. . . . It‘s just occasionally that I see them on the tracks there going down to the Junction, just occasionally. Some of them use the wagon road and some of them don‘t.”
“(Grubbs) Within Missouri City and adjacent territory around four or five hundred people live. . . . If you get upon the railroad track and look up and down the track you could see the outline of a path between the rails. That was the place where people walked as a general thing. I have observed people walking along that track before Mr. Mulholland got hurt. People used it as a general thing. There would be somebody going along very near every day.”
“(Roy Pence) In 1924, and years before that I had occasion from time to time to be down where I could see the tracks. I would say once or twice a month, sometimes oftener, because I used to haul corn out of the bottoms there. . . . I cannot now recall any time that I ever went down in that locality near the Grubbs farm and east of Missouri City in 1924, and years preceding that that I did not see anybody walking up and down the track. It was very common to see people on the track. It was used generally. . . . People that lived over there that went to Missouri City, when the road was wet and muddy or when it was dry and dusty, took to the railroad track
“(Minick) I walked the railroad tracks up there. I am going to tell you the truth because it was muddy. Since they got the oiled road I take the road, but it is just as dangerous as the railroad track because you are continually meeting a car or passing one. . . . When it was muddy I always walked on the railroad track. Nobody ever told me not and I didn‘t know any better. Other people done just like I did. I had men walk there with me on the railroad track. When it was dry and dusty and the roads were thick with dust we walked on the railroad lots of times there. Back in 1924, and before that, it was always a common thing to see people on the railroad. That was true of the part east of Missouri City and up to the Grubbs farm. . . . There were a great many coal miners there in 1924, and years before that and they would walk to the Junction. . . . This coal mine is on the west side of Missouri City.”
“(Ruth Pence) In 1924, and for some years before that, I was along there frequently from time to time. I never was there that I didn‘t see people walking on the tracks east of Missouri City two miles or more east of Missouri City in the neighborhood of the Grubbs’ farm, walking back and forth, going in either direction. . . . I have seen hundreds of them, all classes of people. . . . If you are walking down the railroad track, you have a view of the river. . . . I have seen people taking a walk to see the river. . . . There are a great many bums and hoboes that walk along that track. That is what they look like.”
“(Lloyd) Most every time I went up to the city somebody was walking along the track from Missouri City and up to the Grubbs’ farm. That has been the condition ever since. Farmers and people living around Excelsior Springs Junction and between Excelsior Springs Junction and Missouri City, if they didn‘t go in cars, they usually walk up the track going to Missouri City. If they were going home and didn‘t catch a ride they generally walk down the railroad track. . . . In 1924, the duck hunters and people from Missouri City when they went hunting generally went past the Grubbs farm, down the track. It was very common to see them, you didn‘t think anything about it. People coming there who were strangers to hunt and fish. Some of the fishermen had cabins and lodges there. . . .
“(Clevenger) Most any time I was along there I would see someone on the track. The use of it seemed to be general, people picked that as a way to walk when they was on foot. The farmers east of Missouri City when they wanted to go any place and walk, they went up the railroad track. There always has been, in and around Missouri City, a good many coal miners. I think they used the track to walk on occasionally. . . . The potato industry would bring in there at least two seasons of the year, foreign workers and transit workers who engaged in the work of potato picking and cutting. They were all strangers to me. They would stay with farmers and work out of Missouri City. When they walked, they went down the track to the farms there.”
Plaintiff seeks to establish, by this and other similar testimony, that the railway was not entitled to expect a clear track at any point on the three miles of track between these two stations, where these tracks ran through open fields in the Missouri River bottoms and where so far as the evidence shows and plaintiff‘s pictures disclose there were only a few scattered farm houses. Only a few hundred people lived in the entire territory, including both stations and all the intervening farming district. Although we have a statute (
This court, in the picturesque language of Judge LAMM, has stated the proposition thus:
“The easement of railway companies in their tracks and rights of way, from the very necessity of the things, is deemed in the first instance a paramount and exclusive one. For instance, trains run at great speed, both by day and by night. The property of shippers, the life and limbs of passengers and trainmen are all fettered to, and bound up with, the proposition that trains should have a clear track in the country and between crossings. If we gave way to any other view, we would open a floodgate for manifold wrongs to the traveling public and public service corporations, to enter, and there would be ‘fine’ grinding in the mill when the waters of that flood came in. If A and B at their own, and against defendant‘s will, may appropriate defendant‘s track for their private walking, then, by that token, they may also appropriate the track for the use of their horses, their asses, their sheep, their swine, and horned cattle. . . .
“It must be evident that railroad companies are, in a sense, defenseless against such misappropriation of their tracks by footmen. They fence the right of way, they protect the track by cattle guards, and, in this instance, defendant kept up notices and signs warning the public and protesting against their use of its track. We are brought, then, face to face, with this asking proposition: what more can a railroad company do, or should it be required to do, to protect itself against appropriation of its track by footmen, who are sui juris, than was done in the case at bar? Shall it employ armed guards? Shall it build fences that cannot be scaled, crawled through, or broken down? Shall it plant spikes in its cattle guards to the danger of its own employees? Or use pitfalls? Or what can it do? We confess our inability to answer.” [Frye v. St. L., I. M. & S. Railroad Co., 200 Mo. 377, 98 S. W. 566.]
In the Frye case the court, recognizing the exception that a railway “may know of and acquiesce in the use of portions of its track by the public” and thereby “waive its right to a clear track,” nevertheless held that the use shown over a one mile section of track between two stations was not sufficient to make a case of waiver of the right to a clear track thereon in the nighttime. As to the effect of the daytime use in that case, the court was not called upon to decide. The Frye case has been recently referred to and followed by this court in Crossno v. Terminal Railroad Assn., 333 Mo. 733, 62 S. W. (2d) 1092. In the Crossno case this court restated the limitation upon the rule of waiver announced in the Frye case that “to bring a case within that rule, the use established in the public may be likened somewhat to that giving rise to a prescriptive right; i. e., the use must be a known use, and must be confined to the limits proved.”
The fact that plaintiff was at or near the Grubbs farm crossing did not change the situation. In the absence of known frequent public use, there would be no duty to keep a lookout for the general public at a private farm crossing. [Voorhees v. C., R. I. & P. Railroad Co., 325 Mo. 835, 30 S. W. (2d) 22, 70 A. L. R. 1106; 52 C. J. 175, sec. 1770; 22 R. C. L. 955, sec. 193; see, also, Bryant v. Missouri Pacific Railroad Co., 181 Mo. App. 189, 168 S. W. 228, as to use for farm purposes and where there was also public use shown.]
The judgment is reversed and the cause remanded. Ferguson and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All concur, except Douglas, J., not voting because not member of the court when cause was submitted.