222 Mo. 286 | Mo. | 1909
This is an action for personal injuries brought by Opal Hufft, a minor fifteen years old at date of accident, by his next friend, John Hufft, to recover of the defendant the sum of $20,000 for injuries alleged to have been received through the negligence of the defendant. The petition is in two counts.
In the first count of the petition, plaintiff alleges as negligence against the defendant a failure under section 1123, Revised Statutes 1899, to block or fill the switches, frogs and guardrails in its said switch-yard with the best known appliances to prevent the feet of persons from being caught therein.
By the second count, which plaintiff denominates as his “common law action,” he charges as negligence a violation of the said section 1123 in the first count suggested. Then he further charges that after plaintiff’s foot was caught and fastened in said switch and while he was in this perilous situation “the defendant’s agent and servants there and then in charge of said engine and cars, as above described, could and should have, by the exercise of reasonable care and caution on their part, prevented said injury, in that they could and should have discovered this plaintiff in this perilous position in time to have avoided same and could and should have, by the exercise of reasonable care and caution, stopped said engine and cars in time to have avoided injuring the plaintiff.” That such failure was negligence upon the part of defendant.
As a third ground of negligence, it is charged that defendant operated said engine and cars at the time, i. e., nine o’clock p. m., without having a flagman, brakeman or other person on the rear end of said car which was so pushed over the foot and leg of plaintiff.
Defendant’s answer to the first count was (1) a general denial, and (2) a plea of contributory negligence. The answer to the second count was of the same character. Reply in the nature of a general denial.
Before going to the jury, plaintiff elected to stand on the second count of his petition and dismissed the first count thereof. By a verdict of the jury he was awarded damages in the sum of $5,000, upon which judgment was rendered against the defendant, and from which defendant, after unsuccessful motions for new trial and in arrest of judgment, has appealed to this court.
The necessary facts in this case may be stated briefly.as follows:
Defendant’s railway passes through the city of Lebanon, running east and west. One of its freight trains came in from the east, and going west reached Lebanon at about 8:10' in the evening of the date of the accident. This train pulled in on what is known as the passing track, which was the track north of the main track. The conductor thereof went to the station and there obtained information as to what switching was to be done. It also appears that at about that time there was due a regular freight train from Springfield, Missouri, going east. The defendant company maintained at Lebanon a switchyard in which there were eight or ten or more tracks. On the south side of the main track were two tracks, one known as a tank track, and the other as a stock track. The tank track left the main line at the switch which Was fartherest west in this switchyard. From this tank
Such was the action of the train in question; now as to the action of the plaintiff.
As we take it from the evidence the plaintiff and his companion, Jesse Easley, had been on the north side of the railroad tracks and were desirous to go to a point where they were drilling a well south of the railroad tracks and in the vicinity of the switchfrog whereat plaintiff was afterwards injured, and with this end in view crossed defendant’s railroad tracks and went to said well. At the time they knew that switching was being done by this train in the yards. Plaintiff also knew that switching was continuously being done in these yards in the making up of sundry trains therein. After remaining at the well a short time, plaintiff and his companion concluded to return home. They had observed the engine and cars passing down to the west; to the west of them, as we gather from the meager testimony before us, there was a regular street crossing, but plaintiff and his companion started across the tracks from the well without going to the public crossing. Easley was somewhat in advance of plaintiff and got across the track, when he heard a distressed call from plaintiff. He came back and discovered the plaintiff’s foot was fastened in the switchfrog and according to his testimony
Plaintiff’s individual testimony is substantially to the same effect as that of Easley. These two witnesses were both of the opinion that the car which run over the plaintiff was a loose car and one not attached to the engine. Plaintiff says the loose car Was standing on the track when the train went down, but this is shown to have been an impossibility by all the testimony in the case, and this because the switch-frog whereat plaintiff was injured was the last one to the west in this switchyard and the engine in going to the west with its cars had to pass over this switch-frog. Easley was of the impression that the car was one of a number of cars drawn out by the engine from the stock track and cut off from the train after reaching the main track, thus leaving it unattached to the train. Plaintiff’s witnesses show that there was a brakeman with a lantern on the rear car as the engine and cars passed down the track just before the injury.
For defendant it is shown that this train crew had been advised to keep a lookout for train No. 32, the regular freight train from the west; that the conductor had gone toward the west for the purpose of selecting the cars he had to switch and also to keep a lookout for the east-bound train. Members of the
By the engineer it was shown that after he received the signal to back up and started to back his train in on the stock track, he was at the same time keeping a lookout for the approaching train from the west, and that to protect his train from said approaching train he lit a fuse and threw it out as a signal to train No. 32. That this took but a few seconds and that thereafter upon looking to the rear he saw a violent stop signal and stopped his train within four or five feet after receiving such signal.
Plaintiff claims that the train was not moving when he got his foot caught and moved slowly at all times. All the evidence shows that it was quite dark and that the plaintiff did not or could not see the engineer or the engineer him. It is quite clear from the evidence that the engineer at no time knew of the danger of plaintiff or anybody else until he received the stop signal. Nor did he know of plaintiff’s perilous position until after the injury.
Plaintiff offered several witnesses, the purpose of whose testimony was to show continuous user by pedestrians of the railroad track as a passage way or
The court of its own motion gave on behalf of the plaintiff the following instructions:
“1. The court instructs the jury that under the evidence and law in this case, the plaintiff cannot recover on the ground of any defect in the frog in which the plaintiff’s foot was caught.
“If, however, you find from the evidence that, after plaintiff’s foot was caught in the frog, the brakeman of the train in question discovered the fact that his foot was fast in the frog, and signalled the engineer to stop the train, and if, by the exercise of reasonable care, the engineer could have seen such signal and stopped the train in time to avert the injury complained of, and did not do so, then you shall find the issues for the plaintiff.
“2. The court instructs the jury that by ordinary care as used in these instructions, is meant such care as an ordinary, careful and prudent person would exercise under the same and similar circumstances.
“3. The court instructs the jury that if you find the issues for the plaintiff, Opal Hufft, you may, in assessing the damage, take into consideration his age at the time of his injury, if any, the extent of said injury, if any, together with the humiliation he has or may suffer by or on account of the loss of his said limb, if any, together with all the other facts and circumstances in evidence, not to exceed the sum of twenty thousand dollars.”
The court of its own motion gave the following instruction for the defendant:
*297 “1. The court instructs the jury that the defendant’s engineer did not owe plaintiff the sole duty of keeping a lookout for the stop signals when he was backing his engine and cars, but if you find and believe from- the evidence that another train was approaching his train on the same track, then it was also his duty to look out for it; and if you find and believe from the evidence that the engineer was exercising ordinary care to discharge both of said duties, when backing his said train, and- while in exercising both of said duties with ordinary care he stopped his engine and cars as he saw said stop signals, given by the brakeman, or either of them, - then your verdict must be for the defendant.”
The court refused to give instructions numbered 2 and 3, asked by the defendant, which read as follows;
“2. The court instructs the jury that as to the plaintiff, Opal Hufft, the engineer in charge of defendant’s engine that backed the cars over said plaintiff’s foot was not required to be on the lookout for stop signals, and was not required to stop his engine until he actually saw said signals; and if you believe and find from the evidence that as soon as said engineer saw said stop signals he did all he could to stop his engine and cars, and stopped them, your verdict must be for the defendant.
“3. The court instructs the jury that, in backing his train towards the spot where Opal Hufft was caught, it was not the absolute duty of defendant’s engineer to see the stop signal given by the brakemen, or either of them; that said engineer was only required to use ordinary care under all the facts and circumstances' detailed in evidence to see said stop signals, and then to use such ordinary care after he saw said stop signals to stop his engine and cars; you are further instructed that if said engineer while so backing his engine and cars on the main line, saw*298 another train approaching him on the main line, then it was his duty to look ont for and to nse proper care under the circumstances, and the rules of the company, to stop said approaching train, and although you may believe from the evidence that said engineer did not see said stop signals when first given, yet if you believe that the only reason that he did not see them was because his attention during that time was called towards the approaching train, and that as soon as he could withdraw his attention from said approaching train, with safety to said trains, he looked and saw said stop signals and stopped his engine and cars, your verdict must be for the defendant.”
The court refused to give several instructions asked for the plaintiff which are not necessary to set out herein.
Points made will be noted in the course of the opinion.
I. The plaintiff attempts to plead three grounds of negligence in the second count of his petition. The first is the violation of section 1123, which statute requires the blocking of switchfrogs, and this for the purpose in the language of the statute “to prevent as far as possible, the feet of employees or other persons from being caught therein.” This question we would not discuss here, in as much as the court nisi did not submit it, but for the reason that it is well to discuss it to get at the real situation of the case. Plaintiff urges that the verdict was for the right party and this will further justify the mention of the question here.
The place of the accident was not a public crossing, but in the private switchyards of defendant. Under no circumstances in evidence could plaintiff be more than a bare licensee. To trespassers and bare licensees the defendant owes no duty to block frogs,
In 23 Am. and Eng. Ency. Law (2 Ed.), 733, the rule is thus stated: “A statute requiring railroad companies to block the frogs and switches in their tracks is intended for the protection of employees, and an omission of this duty is not such negligence in respect to a trespasser as to render a railroad company liable for his death from being run over by a train while his foot was held by an unblocked frog.”
To like effect is Elliott on Railroads, sec. 1258, whereat the author says: “No duty rests upon a railroad company in favor of trespasser's or bare licensees, who use its track as a footway, to keep its switches blocked in its private yard in order to prevent injury to such persons.”
In Minnesota there is a statute in all respects like ours. The relevant portion reads: “In order to guard against accidental injuries to employees and others, every railroad company shall properly adjust, fill, block, and guard all its frogs, switches and guardrails.” [R. S. Minn. 1905, sec. 1993.] In Akers v. Railroad, 58 Minn. 540, the question before us was was before that court. This statute, like ours, originated in the year 1887, although ours was at first invalid and only became valid by re-enactment in 1891. [Wells v. Railroad, 110 Mo. 286; Brannock v. Railroad, 200 Mo. l. c. 567.] In the Akers Case user of the railroad track was shown and Erling, the deceased, lost his life by reason of getting his foot caught in an unblocked frog. The court held that there could be no recovery, because no duty was owing to the deceased from the company.
The same ruling was made by the Texas court in Railroad v. Lee, 34 S. W. l. c. 161. The court there says: “Since the evidence shows without contradiction that the switch was in the private yard of the appellant, it was under no obligation to the deceased
In Carr v. Railroad, 195 Mo. l. c. 225, this court said: “The courts make a distinction between a person who comes upon a railroad’s premises at the invitation of the railroad company, or for some purpose connected with its business, and a person who goes upon such premises for his own convenience or pleasure. In the one case there is a duty to protect the person thus going upon the property of another from injury, while on his premises, while as to the other, there is no such duty.” See also exhaustive opinion by Elliott, J., in Railroad v. Phillips, 112 Ind. 59.
We are of the opinion that the plaintiff in the case at bar did not fall within the classes entitled to the protection prescribed by the statute. In our judgment this statute can only be invoked by employees, or such other persons who are necessarily upon the railway tracks by reason of business with the company, or at the express invitation or direction of the company. Plaintiff falls within neither of the classes, and as to him the defendant owed him no duty in this regard, and its failure as to him was not negligence.
II. We reach now the second ground of negligence, and this we quote in full from the petition,, for herein lie several close questions in the cabe. The language of the petition is: “Defendant was further negligent in that after plaintiff’s foot was caught and fastened, as above set forth, and while in this perilous condition and imminent danger, defendant’s agents and servants then and there in charge of said engine and cars, as above described, could and
It must be borne in mind tbat tbe plaintiff bad previously pleaded long and continuous user of tbis portion of tbe track by pedestrians, and was therefore attempting in tbis charge of negligence to bring himself within tbe humanitarian rule. Tbis rule is one well recognized in tbis State, but is one bard to outline in precise terms. We take it, however, tbat we bave squarely fixed at least two classes of cases thereunder and tbe governing law therein. [Hall v. Railroad, 219 Mo. 553; Eppstein v. Railroad, 197 Mo. l. c. 733; Frye v. Railroad, 200 Mo. 377.]
(a) In the first place, if tbe person injured is at a place whereat tbe defendant is entitled to expect a clear track, and for tbat reason is not required to be on tbe lookout for persons on tbe track, then before there can be liability tbe plaintiff must show tbat tbe injured person was seen in a position of peril by defendant’s servants in time for them to bave prevented tbe injury by tbe exercise of reasonable care and caution, after such perilous position was seen and known.
(b) But if tbe person injured was at a place where defendant bad no right to expect a clear track, and therefore there was upon its servants tbe incumbent duty to be on tbe lookout for persons upon tbe track, then if tbe injured person might bave been seen in a perilous position in time to bave prevented tbe injury, by tbe exercise of ordinary care and caution upon tbe part of defendant, its agents and employees, then tbe defendant is liable whether such employees actually saw him or not. And tbis, because it was
The plaintiff brings his suit on the theory that he was in a position of peril and at a place whereat the defendant was not entitled to expect a clear track by reason of long and continuous user of .the track at that place by pedestrians. No other theory can be gathered from the wording of this petition. This theory was never submitted to the jury. By instruction numbered 1 given by the court, the question of whether or not the track at the point of injury had been so long and continuously used by the public as a footpath as to indicate knowledge and acquiescence therein by the railway company, is not presented at all. Under the evidence in this record the court could not declare as a matter of law that there had been such user.
We must not overlook the fact that we have distinguished even between a day and night user. [Frye v. Railroad, 200 Mo. l. c. 401.]
It appears thus from the instructions given by the learned trial judge that he was of the impression that user of the track at the point of accident had not been sufficiently shown to entitle the plaintiff to have that question submitted to the jury. There is no plat of the locus in quo in evidence, and the description given by the witnesses as to the portion used by the public is so meager that we are unable to say whether there was sufficient evidence to submit the question or not. A more unsatisfactory record upon the question could not have been designedly prepared. If there was no sufficient user shown, then the plaintiff was a pure trespasser, and at a place where the agents in charge of defendant’s train had a right to expect a clear track, and were under no obligation to be on the lookout for the plaintiff. And further if there was no such user shown, the plaintiff has been permitted to recover upon a theory not
It has long been the rule of this court that the instructions should not only he within the scope of the evidence, but within the scope of the petition as well. For a collation of the authorities see separate concurring opinion in Black v. Railroad, 217 Mo. 685.
This instruction numbered 1 does not present the case pleaded and presented by the petition, unless it be said that the trial judge meant to declare as a matter of law that the evidence disclosed such long and continuous user as indicated both knowledge of and acquiescence therein by defendant. There may be cases where courts will so declare but this is not one. To our minds the proper rule for guidance is well outlined in Eppstein v. Railroad, 197 Mo. l. c. 734.
III. But going a step further and conceding that the court, nisi, was of opinion that there was no sufficient evidence to authorize the submission of the question to the jury, and that the court did not mean, by instruction numbered 1 for the plaintiff, to declare as a matter of law that there had been such user, then how stand the instructions in this case?
Grant it to be true that a prompt response to the stop signal would have saved the plaintiff, yet if the plaintiff was at a place where the engineer in charge of the engine had no right to expect persons, other than employees, to be, his failure would not he negligence as to the plaintiff. In other words if the engi
On the theory that there had been no sufficient user shown, then defendant’s instruction numbered 2, refused by the court, properly declares the law. So that it matters not which notion was entertained by the trial court, there was ferror in instruction numbered 1 for plaintiff. That is to say, if the trial court meant to declare as a matter of law that such user had been shown, then there was error for that reason, and on the other hand if the court meant to declare that there was no user, and that the place was one where defendant was entitled to a clear track, then the instruction is erroneous, because it imposes the duty to observe the stop signals for the benefit of plaintiff, who, to the engineer, was an unknown and unseen trespasser. To such a person the engineer only owed the duty of obeying the stop signal after he saw it. He was not guilty of negligence toward the plaintiff until he did see it, any more than he would have been of. failing to stop in that class of cases wherein he has a right to expect a clear track and fails to discover a person on the track in time to avert the injury.
The evidence in this case does not show that the engineer had knowledge of plaintiff’s peril. He obeyed the signal to back up, and when he started his train backward he had the right to expect a dear track,
Judgment is reversed and cause remanded.
