96 Mo. 275 | Mo. | 1888
The plaintiffs, who are husband and wife, brought this suit to recover damages for the death of their son, who was run over by defendant’s cars and killed at the town of Augusta, also called Thayer. Plaintiffs kept a boarding-house in the town about one hundred yards from the depot. The boy was intelligent, twelve years of age, and had been raised on and near railroads. A train of eight or ten box-cars in front, loaded with ties, and several empty cars in the rear, came in from the south. Suter, the switch engineer, took the train up opposite the freight depot. The flatcars were then cut loose and left standing on the main track, and he ran the box-cars north a half or a quarter of a mile, intending to place them on a side track, but before the rear car passed the north end of the switch he heard a passenger train coming from the north. He reversed his engine, signaled the passenger train to come forward, and ran his train back and put the flat and box-cars on the switch at the south end. As the boxcars hit the flat-cars, one of the latter ran over the boy.
The petition alleges that the boy was killed at a crossing and at a point opposite the freight depot, but the evidence shows that he was run over three or four hundred feet north of the street, which crosses the track, and at a point opposite the freight depot, where there is
Hazen says the jam broke the engine loose from the box-cars. The proof is that the bell was ringing all the while, .and the witnesses who testify as to rate of speed, with one exception, place it at six to eight miles per hour. Other evidence is to the effect that the jam Was not of unusual force, and that the cars were not injured by it. There is evidence that Suter was often about saloons and drank considerably, but there is no proof that he was intoxicated at the time of the accident, and the only witness that speaks of his competency, says he was regarded as a careful engineer. There is evidence that plaintiffs got water for their boarding-house from a
The most important question in this case is,- whether ' the defendant’s instruction, asked at the close of the case, in the nature of a demurrer to the evidence, should have been given. This question will, however, be considered in the light of the second instruction given at the request of plaintiffs, which is as folíbws:
“2. That although the jury may believe from the evidence that the deceased, Charles Williams, was guilty of negligence by being on or about defendant’s track or cars at or near its depot, yet if they further believe from the evidence that his death could have been prevented by the exercise of reasonable care on the part of defendant’s servants and employes after discovery of danger in which the said Charles Williams stood ; or if defendant's servants and employes failed to discover the danger in which said Charles Williams was at the time, through their recklessness and carelessness, when the exercise of ordinary care would have discovered his danger and averted the calamity, then the defendant is liable and the jury should find for the plaintiffs.”
It must be kept in mind throughout this case, that the boy, at the time of the accident, was on a car or the traok in the defendant’s switch-yard, and that too without invitation or right. In short he was a trespasser. The principles of law which are to be applied in cases of this kind are not to be confounded with those which are applied where the party is on the car or track by right; nor with those which regulate the duties of railroad corporations at public crossings, or where the company has violated some statutory or municipal regulation.
It has been held in a number of cases, where the party injured or killed was wrongfully on a railroad track, was a trespasser, that in order to make the
But it is necessary to examine the other branch of the plaintiffs’ second instruction. The general rule of the authorities before cited implies that the engineer is not bound to foresee the wrongful presence of persons upon the track or cars. The rule, however, as before stated, will, in some cases, require a modification. It was said in case of Harlan v. Railroad, 65 Mo. 22, that the company would be liable, though the person injured or killed was wrongfully on the track, if the defendant failed to discover the danger through the recklessness
Thus it jvill be seen that cases may and do arise where, though the company is entitled to a clear track, it cannot be fairly presumed that the track will be clear. A duty then arises to look out, and the liability is not limited to want of care after discovery of the danger. Instances of such cases have been given, and perhaps
Now in this case the boy was on the track or car in the defendant’s switch-yards, not at or near a place where he had a right to be. These tracks were much used for the purpose of switching cars and making up trains, being at the end of the road divisions. The train had just gone to the north end of the switch, and there being no evidence that the persons in charge of the train saw or knew that the boy was on the cars or track, they were not bound to foresee or anticipate his presence. It follows that the instruction is wrong as to the second branch, or ground of liability.
The instruction just considered assumes that the boy was guilty of negligence. And the question remains whether the case should go to the jury on
It is true the evidence shows or tends to show that the box-cars were set back against the flat-cars with more than usual force, but it is an undisputed fact that the engineer was endeavoring to avoid or not delay the incoming passenger train, as it was his duty to do. There is no evidence of a wanton injury, and we can but conclude that there is no evidence of gross and reckless carelessness, lest it be that of the witness Burner, which is as follows: “My livery-stable is across the street from freight depot and above the depot. I heard 'the jam together. I went over at once. Hr. Crider was
Cross-examined: Q. “Could you not drop off a mile or so from that rate 1 ” A. “No. If I should change, I should put it faster than what I have stated.” Q. “ If a train was running at thirty miles an hour would a person get jammed or hurt in jumping off ? ” A. “It would depend upon what he lit on. I am not a railroad man. The train made noise as it came running back, I think I could have heard two miles. Have heard trains sixteen miles.”
This witness appears to have been at his stable at the time of the accident, and the only inference from his evidence is, that he did not see the cars when they came together. He heard the jam, and from that alone makes his estimate of the rate of speed, an estimate at war with all the other evidence in the case. Whilst the rate of speed of an engine or car may be shown by the opinion of witnesses who saw the engine or car in motion, still such evidence seems to be admitted on the ground that the estimate involves the consideration of many circumstances which cannot be accurately or fully detailed. Hence the conclusion drawn by the witness from the circumstances is admitted. It is but the opinion of the witness. Such an opinion formed by a non-expert solely from hearing the jam of the cars is of no value, and we conclude entitled to no consideration. The witness, if not an expert, ought to have before his mind and eye something more' than the noise made by the jam of the cars to entitle his opinion of the rate of speed of the cars to any consideration.
The judgment is reversed.