181 Mo. 379 | Mo. | 1904
This is an appeal from an order of the circuit court of Buchanan county granting the plaintiff a new trial.
The action is one for damages for personal injuries alleged to have been caused to plaintiff by the negligence of defendant.
The cause was tried at the February term, 1901. A jury was impaneled, and at the close of all the evidence the circuit court gave a peremptory instruction directing the jury to find for the defendant. WThereupon plaintiff took a nonsuit with leave to move to set the same aside, and thereafter filed his motion for a new trial, which the court sustained on the ground that it erred in giving said instruction, and from its order in granting a new trial defendant appealed to this court.
The propriety of sustaining the demurrer to the evidence is the sole question for solution at this time. The petition in substance is as follows:
“Comes now the plaintiff and for cause of action states that the defendant is a corporation, organized and existing under and by virtue of the laws of the State of Missouri, and as such corporation owns and operates railway tracks running to and from the city*385 .of St. Joseph, and that among other tracks, the defendant has a track which runs from St. Joseph to South St. Joseph and to Atchison and Kansas City. That said defendant operates said railroad and has daily passenger trains which run over said roadbed on schedule time. That said railroad track from the St. Joseph union station to South St. Joseph is within the city limits of the city of St. Joseph, Buchanan county, Missouri, and is subject to all of the city ordinances which are in force and which are passed by the city council of the city of St. Joseph, Buchanan county, Missouri. That, to-wit, on the twenty-second day of November, 1900, plaintiff was walking from South St. Joseph to St. Joseph along the track owned and operated by said defendant railway, and very near the edge of said track. That the place where plaintiff was walking was a place which pedestrians were accustomed to use in going to and from St. Joseph to South St. Joseph to their work, and by common consent, was used as a walk for workmen to go to and from their work from the main portion of the city of St. .Joseph to the stock yards at South St. Joseph, Missouri. That on the above mentioned date, the plaintiff, while walking along the track of the Missouri Pacific-Railway Company, and close to the edge thereof, and at a point where — street intersects the railway, and also where the southern end of the switch yards of the Burlington Railway Company intersects — that while walking north along said track in a place of danger as herein stated, and so close to said track that a train passing over said track would strike plaintiff, said defendant, its agents and servants, while running its said passenger train, which was drawn by engine numbered 210, at about ten o’clock in the morning, and while running their said train from South St. Joseph tó St. Joseph and over the track herein described, struck plaintiff and knocked plaintiff down and broke plaintiff’s arm*386 and rendered plaintiff insensible. That prior thereto and at the time that defendant struck plaintiff, defendant, its agents and servants, was running its train at a rate of speed, to-wit, forty miles an hour. That defendant did not give plaintiff any alarm, ring any bell or blow any whistle, as provided by the ordinances of the city of St. Joseph, and was running the train in violation thereof. That said injury has made said arm useless and rendered plaintiff a cripple for life. That said injury was caused wholly on account of the negligence, willfulness and carelessness of defendant, its agents and servants in running its said train in violation of the ordinances of the city of St. Joseph. Plaintiff further states that defendant, its agents and servants, were negligent, that they saw plaintiff for the distance of a half mile in the place of danger, but gave plaintiff no alarm whatever, but ran plaintiff down, struck plaintiff and injured him as aforesaid by their carelessness, negligence and in violation of law. "Wherefore plaintiff is rendered a cripple as aforesaid and is damaged in the sum of five thousand dollars. Wherefore plaintiff prays judgment in the sum of five thousand dollars, and for such other and further relief as the court may deem proper.”
The answer was first a general denial and second contributory negligence on the part of plaintiff in being at the time he was injured a trespasser on the tracks and right-of-way of the Kansas City, St. Joseph & Council Bluffs Railroad Company and the Hannibal & St. Joseph Railroad Company, both of which were at the time owned and operated by the Chicago, Burlington & Quincy Railroad Company under some arrangement the particulars of which were unknown to defendant; that plaintiff was guilty of negligence contributing directly to produce and cause the accident alleged in the petition, by absolutely taking no care or precaution whatever to see or hear defendant’s train men
There was no reply filed, but the cause was tried as if one had been filed.
The petition alleges that the accident occurred near the intersection of a street by defendant’s tracks, but it does not specify the name of the street, but from the evidence we glean it happened between what is locally known as Missouri avenue, which was south of the Burlington yards, and Lake avenue or boulevard north of those yards, and at a point well up in the yards. No other street crossed the tracks between the above named avenues.
On the twenty-second day of November, 1900, and prior thereto, there were large packing houses situated in the southern part of the city of St. Joseph. It is over a mile from the packing house district to Lake boulevard. The city of St. Joseph proper is north of this boulevard. The Hannibal & St. Joseph Railroad Company, and the Kansas City, St. Joseph & Council Bluffs Railroad, each owned tracks running nearly north and south from the. packing houses to Lake boulevard. The Kansas City, St. Joseph & Council Bluffs owned its main tracks and also terminal facilities, consisting of railroad yards in which trains were made up and requiring numerous switch tracks, and the Hannibal & St. Joseph owned its main tracks parallel to the main tracks of the Kansas City, St. Joseph & Council Bluffs.
The Missouri Pacific Railway had acquired the right by contract to run its trains over the Hannibal tracks through these yards. These yards extended a half mile south from Lake boulevard and to within a few feet of Missouri avenue.
The Kansas City, St. Joseph & Council Bluffs main track is on the east, then next parallel to it on the west is the Hannibal main track.
These tracks are eight feet apart — then on the west
The Hannibal and Kansas City tracks cross each other about one hundred feet south of Lake boulevard, which crossing is referred to in the evidence as the “railroad crossing.”
The southern limits of the yards were marked by a yard-limit board stating that fact. Immediately north of Lake boulevard there was a printed sign reading:
“No admittance except to employees. These grounds are private property and used as a switching yard. All persons are warned of danger. G. M. Hohl, Superintendent. ’ ’
There was also at Lake boulevard a sign known as a thoroughfare sign reading:
“This is not a thoroughfare. But the private property of the K. C. St. J. & C. B. R. R. Company. All persons are warned against trespassing.”
There was also another such thoroughfare sign at Missouri avenue, the southern limit of the yards, and five such signs between Missouri avenue and Lake boulevard. These signs the evidence tended to prove had been there for a number of years. They were painted in large black letters on boards two and one-half feet square painted white, and were on posts six and one-half and seven feet high.
There was a “2000-foot post” two thousand feet south of the railroad crossing. The evidence tended to prove that the employees of the stock yards and other people were in the habit of walking on these main tracks, and there was a footpath between the two tracks on which pedestrians walked, which approached nearer the ends of the cross-ties of the Hannibal track than it did to the Kansas City track. On the morning of November 22, 1900, the plaintiff as walking from the direction of the stock yards northward toward the city
No other witness saw the train strike him. When he regained his consciousness both trains were gone.
The other evidence as to the manner of the accident on the part of the plaintiff tended to prove that a Burlington train going south that morning consisted of thirty-five or forty cars, and, being a pretty heavy train, broke into two parts before it got out of these yards, and a switch engine crew had coupled it up and backed it
The evidence shows these tracks were eight feet apart. The freight ears project eighteen inches over the rails, and passenger cars two feet, leaving a space of three and one-half feet in which plaintiff could have stood in safety while both trains were passing. Rixey, the brakeman on the freight, testified that when he first saw plaintiff, the freight had not entirely passed him, the witness being about twelve cars from the rear end of the train, and the plaintiff was just in the act of getting up, and at that time the Missouri Pacific was up
Plaintiff’s physicians testified that his injury consisted of a fracture of the lower third of the upper left arm and that the skin ivas not broken nor the flesh lacerated, Dr. Campbell, one of plaintiff’s witnesses, testified that if a railroad train running at the rate of thirty-five or forty miles an hour had struck plaintiff’s left arm and broken it and thrown him to the ground, the skin of the arm would have been broken, and he would have been otherwise injured, and that when he examined him his arm had the appearance it would have had if he had stepped quickly and fallen on it and broken it. He was corroborated in this opinion by Dr. Hieger, the only other expert who testified upon that subject.
On the part of defendant, the engineer of the Missouri Pacific train testified he did not see plaintiff or any other man on his track. Didn’t know until 'next day a man was hurt. Eemembered then passing the freight that morning as he came up to the crossing where he stopped. His bell was ringing. The fireman also testified that he did not see plaintiff when he was hurt or before; that his bell was ringing while going through the yards. Does it every day at that place. He sounded his whistle as he approached the railroad crossing of the Kansas City track.
Hooding, the engineer at the switch engine, which pushed.the freight train of the Kansas City south that morning, testified that when he got the signal from the engineer of the freight he shut off steam, and the
Two ordinances of the city were introduced, one forbidding engines to be driven within the city at a greater speed than five miles an hour, and the other requiring the bell to be rung continually in the city. There was evidence that the point where plaintiff was injured was in the extended limits of the city of St. Joseph.
Did the circuit court properly direct a verdict for the defendant upon the foregoing evidence? If it did, it erred in granting a new trial on the ground that it should not have given the instruction.
When plaintiff was injured he was a trespasser in the yards of the Kansas City, St. Joseph & Council Bluffs railroad. The track on which defendant was running its train under a contract with the Hannibal & St. Joseph railroad was under the control of the Burlington railroad which at that time was in the control, both of the Hannibal & St. Joseph, and the Kansas City, St. Joseph & Council Bluffs road.' The place where plaintiff was injured was in the private yards of the defendant’s; lessor, and the public were warned not to trespass, therein. But notwithstanding plaintiff was a trespasser, defendant owed him the duty of not wantonly and recklessly injuring him if the servants of defendant saw him in time to have averted the injury with safety to the passengers on its train, or by the exercise' of ordinary care could have seen him in time to have avoided injuring him, as the place was one where the-public were in the habit of walking on the tracks to such
The difficulty in the peculiar state of facts disclosed by the evidence is in applying the foregoing-statement of the law to plaintiff is case.
According to his own evidence he was an adult. He was not on the track of defendant at any time. He had been up to a very short time before he was struck by defendant’s train (if he was in fact struck by it) on or-near the Kansas City, St. Joseph & Council Bluffs track. He had stepped off of or from a close proximity to the Kansas City track and was about two feet from it walking along between the tracks with his back to defendant’s approaching train.
Accepting his own statement as true, and no witness contradicts him in this regard, what was there in his position to apprise defendant’s.engineer that he was in danger of being struck by defendant’s engine or train had he seen him?
The Kansas City track was eight feet from the-Hannibal track and if plaintiff was, as he says he was, only two feet from the Kansas City track, then he was. six feet from the track on which defendant’s train was. moving.
Being an adult, and the time daylight, what was there to cause the engineer to apprehend that he-would recklessly place himself in front of defendant’s train or so near to it that he would be struck without looking for its approach? That he did not go upon the track proper, that is, on or between the rails, the proof, very clearly establishes. Neither he nor any of his witnesses place him in that position, and he says he was between the tracks. Moreover, the very nature of his injury and the place he was seen in immediately after the train passed forbid the deduction that he could have been on the track. Had he been he would unquestionably have been killed or crushed and mangled. We think that there was no evidence from which a jury
But independently of plaintiff’s own testimony the other facts in evidence tend to show that he was not on or so dangerously near to the Hannibal track that the engineer and fireman of defendant’s train could have seen him for any appreciable length of time. Plaintiff’s evidence tends to show that the engineer could have
There is no evidence showing that the engineer had any reason to suspect or anticipate that plaintiff, an adult, in broad daylight, and with a full knowledge of'
On the contrary had the engineer seen plaintiff a minute before his train reached him, he would have seen that he was an adult and walking in a place of safety and it would be most unreasonable for him to anticipate-that a grown-up man would step on the tracks of a railroad without even glancing up and down to see if a train was approaching, and the facts show that plaintiff did not get on the track at all nor near enough, to-be hurt before the engine passed him.
We are cited to Chamberlain v. Railroad, 133 Mo. 587, but the facts of that case are so radically different, from those we are now considering they afford no support for plaintiff’s recovery in this case. In that case the plaintiff and two others were walking immediately on the track and were observed by the engineer or could readily have been seen for 2,000 feet before the engine-struck. Chamberlain was walking on a track in constant use by pedestrians at that time of day in a thickly-settled section; there were no signs warning trespassers to keep off the tracks; another train was passing in an opposite direction and whistling and the engineer gave a signal some distance away and he noted that Chamberlain did not heed it but seemed attracted by the other train. None of those conditions existed in this case. The same was true in Fiedler v. Railroad, 107 Mo. 645. This case falls within the reasoning of Kreis v. Railroad, 148 Mo. 321, and Hyde v. Railroad, 110 Mo. 272.
The place where this accident occurred was in the-switch yards of the railroad of the Burlington road. Notices were posted at éach end of the yard warning the-public and trespassers to keep out and that those tracks were not thoroughfares, and in such circumstances there-can be no claim of a license from the company that the; public might use them for a highway.
The slightest care on his part for his safety dictated that he should look for trains in the yards before going up the tracks or so near thereto that he was in danger of being struck, and his own evidence shows he did not do so.
The trial court properly directed a verdict for defendant and erred in setting it aside and its judgment is therefore reversed and the cause is remanded with directions to set aside the order granting a new trial and to enter judgment for defendant.