Barker v. Hannibal & St. Joseph Railroad Co.

• Decision Date: 18 March 1889
• Citation: 11 S.W. 254,98 Mo. 50
• Parties: Barker v. The Hannibal & St. Joseph Railroad Company, Appellant
• Court: Missouri Supreme Court

11 S.W. 254

98 Mo. 50

Barker v. The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri

March 18, 1889

Appeal from Buchanan Circuit Court. -- Hon. Vinton Pike, Special Judge.

Reversed.

Strong & Mosman for appellant.

(1) Barker was a trespasser on the defendant's track. R. S 1879, sec. 809. The company does not owe the duty to trespassers, to watch out for them, and protect them while they are trespassing on its enclosed track, at a point in the country not frequented by the public, and remote from highway crossings. McAllister v. Ry. Co., 64 Ia. 395; Masser v. Ry. Co., 68 Ia. 602; Scheffler v. Ry Co., 32 Minn. 518; Tonawanda Co. v. Munger, 5 Denio, 266-7; Comley v. Ry. Co., 12 A. 496. (2) The rule of law is that under such circumstances a trespasser cannot recover for mere negligence. He is upon the track under such circumstances as create no duty to him beyond that of not wilfully injuring him. Evidence of a wilful and wanton injury is essential to the recovery by a party who is trespassing upon the track, under the circumstances shown in evidence in this case. Henry case, 76 Mo. 295; Mason case, 27 Kas. 83; Gregory case, 14 N.E. 228; Tonawanda case, supra. (3) The death of said Barker "was occasioned directly and solely by his gross negligence in going and remaining upon the railroad track without looking or listening for the approach of the train." Bell v. Railroad, 86 Mo. 612; Taylor v. Railroad, 86 Mo. 457; Yancy v. Railroad, 93 Mo. 433; Lennix v. Railroad, 76 Mo. 86; Langan v. Railroad, 72 Mo. 397; Railroad v. Houston, 95 U.S. 702; Reynolds v. Railroad, 58 N.Y. 248; Mulherin v. Railroad, 81 Pa. St. 366. (4) Even under the rule that a defendant is liable notwithstanding the contributory negligence of the plaintiff, if the defendant, after he became aware of the perilous situation of the plaintiff, failed to exercise ordinary care to avoid injuring him, the demurrer should have been sustained. There was no evidence tending to show that the servants of defendant in charge of said engine had any knowledge, notice or information whatever of the presence of Barker on the track before the engine struck him. Railroad v. Howard, 82 Ky. 212; Railroad v. Stroud, 64 Miss. 784; Strong v. Canton Railway, 3 So. 465; Railroad v. Smith, 3 S.E. 397. (5) The evidence did not disclose either a fact or a circumstance from which negligence on the part of men in charge of the engine can be inferred, and hence the demurrer should have been given.

W. P. Hall and Doniphan & Reed for respondent.

While plaintiff's husband may have been a trespasser, yet the facts and circumstances show this to be a case calling for care and protection even to a trespasser, for it is our contention that defendant saw Barker in time to have avoided his destruction.

Black J. Ray, C. J., and Barclay, J., dissent.

OPINION

Black, J.

This is a suit by the widow of E. B. Barker to recover the statutory penalty of five thousand dollars for the death of her husband who was run over and killed by a train of the defendant's cars. The defendant offered no evidence, and the question is, whether the defendant's instruction in the nature of a demurrer to the plaintiff's evidence should have been given.

The evidence offered by the plaintiff discloses these facts: Barker resided in a house close to the defendant's track. There is a public road thirty-five feet south of his house; the south side of this road is separated from the defendant's right of way by a fence, and the track of the Wabash Railway Company runs parallel to the track of the defendant, but adjoining and to the south thereof. Barker left his house, went south across the public road which goes directly to St. Joseph, got over the fence, and ascended a bank some six or eight feet in height to the defendant's track. He then started westward on the track towards St. Joseph, where he was going, without stopping or looking to the east. He had not traveled more than sixty to seventy-five feet when a regular daily west-bound passenger train came through a cut, around a curve and on a down grade, and ran over and killed him. Had Barker looked to the east he could have seen the train for a distance of two hundred yards, and the engineer could have seen a person on the track for nearly the same distance. Barker knew the train was due when he got upon the track. There was a tie train standing on the Wabash track at the time, and it seems probable that his attention was attracted to the men at work on that train. He was a little hard of hearing, but could hear ordinary conversations. The evidence tends to show that no signal was given by sounding the whistle or ringing the bell; and that the train, if on a level track, could have been stopped in a distance of one hundred yards. It does not appear within what distance it could have been stopped on this down grade.

There can be no doubt that Barker was guilty of negligence in going upon the track at a time when he knew the train was due without looking or listening for it. Besides this he got upon the track at a place other than a crossing, and was making a foot-path out of the railroad track, and that, too, at a place where the defendant was required to and had fenced its road. In short he was a trespasser, declared to be such by the statute law of this state. R. S. 1879, sec. 809. Being a trespasser, the company owed him no duty, except not to wantonly, wilfully or with gross negligence injure...