Reardon v. Missouri Pacific Railway Co.

| Mo. | Feb 28, 1893

G-antt, P. J.

I. The petition is not obnoxious to the criticism of defendant’s counsel that it fails to state a cause of action. The alleged defect consists in not stating the relation plaintiff bore the defendant. The point is without merit. The petition stated a case of negligence, for which defendant would have been liable to plaintiff whether he was a trespasser or servant of the company. It is not a model pleading but it stated the case, and is unquestionably good after verdict.

II. There was no error in the admission of the evidence of John Hoefer. He testified without objection that there were two men in charge of the portion of the train attached to the engine, the engineer and fireman. The plaintiff had a right to place all the facts before the jury. This was material, competent evidence. There is in it no suggestion that any others were necessary either in the evidence or instruction.

III. Equally untenable is the objection to Mrs. Reardon’s evidence as to plaintiff’s occupation before he was hurt, and the condition of his health. These facts were eminently proper to enable the jury to form a correct estimate of the damage, if any.

IY. The witness Shelman’s answer to the question limiting his experience to trespassers on the track in the country was improperly excluded, but the discussion has been rendered immaterial by the court’s subsequently permitting him to answer it.

Y. The testimony of plaintiff’s physicians, Drs. Dawes and Bolinger, was clearly inadmissible under the statute. Revised Statutes, 1889, sec. 8925.

YI. There was no error in overruling the demurrer to the evidence. Conceding that plaintiff was a trespasser on the track, and that the agents of the defendant were only bonnd to exercise ordinary care to avoid injuring him, after his perilous position was discovered, it was still a question for the jury. It was their duty and province to ascertain, when this position was discovered, how far the engine was from the plaintiff when he fell upon the track in front of it; within what time and space the engine could have been stopped after seeing him fall; what means the engineer resorted to to check or stop the train; what success attended his efforts in this direction. To none of these questions, in view of the contradictory evidence in this case, could the trial judge respond, and much less can we. Rine v. Railroad, 100 Mo. 228" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/rine-v-chicago--alton-railroad-8009759?utm_source=webapp" opinion_id="8009759">100 Mo. 228.

YII. The court in plaintiff’s first three instructions instructed the jury that, although plaintiff had no right upon the track, yet if defendant’s servants discovered him in a dangerous and exposed condition in time to have stopped or slackened the speed of the train, in time to have averted the injury in safety to themselves by using the ordinary means and appliances for stopping the engine and train, and failed to exercise such ordinary care, defendant was liable. The criticism upon the three instructions receives its strength from attacking them in detail. Itis very true that “ordinary care” should have been defined as such care as would be ordinarily used by prudent persons performing a like service under similar circumstances, but when the court instructed the jury that when the engineer saw the plaintiff fall upon the track immediately in front of his moving engine, if he had time then to stop the engine with safety to himself and those on board the train, it was his duty to do so, it exacted nothing more than would be expected of any prudent man with humane instincts. We read the three instructions together, and while they might very well have been included in one, still we think they could not be understood as requiring any more than the use of ordinary care to save plaintiff from harm after he unexpectedly fell upon the track, and defendant had become aware of his peril—less than this would be a reproach to the law and our common humanity.

Nor do we think plaintiff’s third instruction is inconsistent with his first or defendant’s in requiring more than ordinary care. It is true that it uses the expression “any means,” but this phrase is coupled with the other qualifying words, “consistent with their safety and that of the engine and cars” and “failed to use the means in their power consistent with their safety and that of the train in order to stop the train.” Thus modified we do not think the instruction requires too much care in saving a human life, nor do we think it can be construed to mean that no allowance under any circumstances is to be made for the short time in which the engineer must determine his course of conduct. The engineer in this case saw the plaintiff, warned him by a danger signal; saw him fall; says he thought he was drunk, and says he himself was cool and not excited. Under such circumstances, the law did exact as ordinary prudence that he should use all means in his power consistent with his own safety and that of his train and passengers or crew to prevent killing plaintiff. This much the instruction demanded 'and no more, as we read it. The court gave an instruction for defendant correctly defining “ordinary care” and we cannot indulge the presumption that the jury ignored it, as it was in our opinion consistent with .the plaintiff’s said instructions.

VIII. Having obtained these three instructions we cannot comprehend the purpose of plaintiff in asking the fourth and fifth instructions given for him.

The court at plaintiff’s request had in his first three and sixth instructions properly limited defendant’s liability to the negligence of its servants* after they discovered the plaintiff was in a dangerous and exposed position. In his fourth and fifth he seeks to hold defendant liable from the moment plaintiff stepped on the track. This is not the law. When plaintiff stepped on the track, it was the engineer’s duty to warn him, and this he did. The engineer had a right to presume that an adult would at once step off the track and avoid danger. He was not required to stop his train until he saw plaintiff was in a position of danger or peril. When he fell, then his position became perilous and the duty to stop the train by use of all the means consistent with the safety of himself and his train devolved upon the engineer and servants of defendant in charge of the train. The facts of this case show the necessity of making the distinction as to the getting on the track and his position after he had fallen. The use of the steam brake immediately upon his entering upon the track would unquestionably have stopped the train, but whether it would after plaintiff had fallen and it became evident he was in peril, was, at least, a debatable question, and one for the jury to find. These two instructions are inconsistent with the other three, and besides are not the law, being otherwise defective. They constitute reversible error.

IX. It only remains to note the contention of defendant that the court erred in giving any and all these instructions because inconsistent with the tenth instruction given for defendant, which exonerated defendant from all liability unless its agents or servants wilfully ran said engine upon and over plaintiff.

The giving of this tenth instruction was error but it was of defendant’s own making. It is very true that it is utterly inconsistent with 'the instructions for plaintiff and defendant’s other instructions, but had there been no other error the cause would not be reversed for this. Defendant had by this instruction required the plaintiff to go beyond negligence to prove wilfulness. It thus obtained an advantage to which it was not entitled, but as the jury responded even 'to that demand, defendant was estopped from complaining of an inconsistency of his own creation.

We do not deem it necessary to enter upon any discussion of the contention that defendant is only liable for wilful or wanton injury. The law of this state is too thoroughly well settled that the defendant is liable eyen to a trespasser, if it fail to use ordinary care to prevent injuring him, after discovering his peril.

It results, that the judgment must be reversed and the cause remanded for a new trial.

Sherwood and Burgess, JJ., concur.