Lemay v. The Missouri Pacific Railway Company

• Citation: 16 S.W. 1049,105 Mo. 361
• Parties: LeMay v. The Missouri Pacific Railway Company, Appellant
• Decision Date: 29 June 1891
• Court: Missouri Supreme Court

16 S.W. 1049

105 Mo. 361

LeMay v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

June 29, 1891

April 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

McDougal & Robinson for appellant.

(1) The defendant's objection to the introduction of any evidence should have been sustained. The petition "should have set forth, with a reasonable degree of particularity, the acts which it was intended to be shown were negligently done." Gurley v. Railroad, 93 Mo. 451. This was not done. The petition only charged that deceased "was by the carelessness, negligence and unskilfulness of defendant's officers, agents, servants and employes while running, conducting and managing certain cars, run over by two of said cars." "A petition with such a general allegation is worthless." Gurley v Railroad, 93 Mo. 450. (2) Under the evidence in the case the court should have instructed the jury to find for the defendant. Plaintiff was a trespasser on defendant's track, and was guilty of contributory negligence. He had no right to be there. (3) The court erred in giving plaintiff's instruction, numbered 3. Said instruction was faulty in leaving it to the jury to find in a general way what constituted negligence. Goodwin v. Railroad, 75 Mo. 73; Ravenscraft v. Railroad, 27 Mo.App. 617; Gurley v. Railroad, 93 Mo. 445; Wooley v. Railroad, 5 West. Rep. 667. (4) The court erred in giving plaintiff's instruction, numbered 6. There was no testimony tending to prove that any officer, agent or employe of defendant was aware of the boatman walking on the track, and it was not the defendant's duty to ascertain this fact. It was a matter about which the defendant could not be negligent. McLaren v. Railroad, 8 Am. & Eng. R. R. Cases, 217; note p. 124, Wright v. Railroad, 2 Am. & Eng. R. R. Cases, 121; note p. 438, Davis v. Railroad, 15 Am. & Eng. R. R. Cases, 424; Railroad v. Brinson, 19 Am. & Eng. R. R. Cases, 42; Railroad v. State, 19 Am. & Eng. R. R. Cases, 83, p. 88, note 90. "Except at crossings, where the public have a right of way, the man who steps his foot upon a railroad track does so at his peril. The company has not only a right, but it is exclusive at all times and for all purposes." Mulherrin v. Railroad, 31 P. F. Smith, 366; Railroad v. Norton, 12 Harris, 465; Railroad v. Brinson, 19 Am. & Eng. R. R. Cases, 42, p. 48, note 73.

Warner, Dean & Hagerman for respondent.

(1) Plaintiff's petition states a cause of action and the objection of defendant to the introduction of any evidence was properly overruled. Garner v. Railroad, 34 Mo. 235; McPheeters v. Railroad, 45 Mo. 22; Mack v. Railroad, 77 Mo. 234; Schneider v. Railroad, 75 Mo. 295; Sullivan v. Railroad, 97 Mo. 113. (2) The deceased was not a trespasser and the court did not err in giving plaintiff's instruction, numbered 6. Troy v. Railroad, 34 Am. & Eng. R. R. Cases, 18; Davis v. Railroad, 15 Am. & Eng. R. R. Cases, 431. (3) Even if the deceased was a trespasser, under the circumstances of this case the defendant was bound to exercise ordinary care to discover him on the track. Williams v. Railroad, 96 Mo. 281; Guenther v. Railroad, 95 Mo. 286; St. Louis v. Crosnoe, 37 Am. & Eng. R. R. Cases, 313; Kay v. Railroad, 65 Pa. St. 273; Harriman v. Railroad, 12 N.E. 451; Cook v. Railroad, 67 Ala. 533; Railroad v. Donovan, 4 S. Rep. 142; Mizenor v. Railroad, 4 S.E. 242. (4) The court did not err in giving plaintiff's third instruction. Instructions are sufficient, if taken as a whole they fairly state the law. Moore v. Sanborn, 42 Mo. 490; Karle v. Railroad, 55 Mo. 476; Edwards v. Carey, 60 Mo. 572. (5) Even if instruction, numbered 3, given for plaintiff is subject to the criticism, appellant is in no position to complain as his own instructions contain the same principle. Hazell v. Bank, 95 Mo. 66; Smith v. Culligan, 74 Mo. 389; McGonigle v. Daugherty, 71 Mo. 259.

Sherwood, P. J. Barclay, J., absent.

OPINION

Sherwood, P. J.

Action by the widow of Frank LeMay to recover $ 5,000 for the death of her husband. In her petition she charged that her husband was on one of the defendant's railroad tracks by license and permission, and that while on said track, "by the carelessness, negligence and unskillfulness of the defendant, its officers, agents, servants and employes, while running, conducting and managing certain cars, was run over by two cars of said defendant, and which cars were, at the time they ran over the said Frank LeMay, carelessly, negligently and unskillfully conducted and managed by said defendant, its officers, agents, servants and employes, and received injuries thereby, from which he instantly died."

The accident occurred in Kansas City, Missouri, on one of the defendant's main tracks which runs along the bank of the Missouri river. The river, at the point of the accident, runs in an easterly direction. Front street runs east and west along the south bank of the river. Grand avenue, Main, Delaware and Wyandotte streets begin at Front street, and run north and south. Delaware is the next street west of Main, and Wyandotte is the next street west of Delaware. At the point where the deceased was run over and killed, the defendant had double and parallel tracks running east and west along the north side of Front street and on the south bank of the river, the north track being used by incoming or west-bound trains, and the south track by out-going or east-bound trains. The double tracks of the defendant were connected between Main and Delaware streets by a switch, and were on a down grade from Main street to the point where LeMay was killed.

In the afternoon of the twenty-fourth day of May, 1886, the defendant, through its agents and employes, brought out two cars from the track known as the house track, at Grand avenue, which is the second street east of Main street. At Main street the cars in question were detached, the engine passing over the switch to the out-going or south track, and the detached cars were allowed to pass down the in-coming or north track. The evidence is conflicting as to whether anyone was on the cars in question, as they passed down the north track; that of the plaintiff proving that they were unattended. The evidence is also conflicting as to the rate of speed the cars in question moved down the track after they were detached; that of the plaintiff tending to prove that they moved at the rate of fifteen miles an hour. LeMay, at the time of his death, was upon the defendant's in-coming or north track, having stepped upon it at the foot of Delaware street, and was engaged in towing a sand boat up the river to get a load of sand. The undisputed evidence proves that LeMay, while thus engaged, was overtaken by the cars in question running down the north track, at a point between Delaware and Wyandotte streets, and run over and killed. The undisputed evidence further proves that LeMay and others engaged in like employment had been accustomed, for a long time prior to the accident, to walk upon defendant's north track, between Delaware and Wyandotte streets while towing sand boats up the river, because there was not room or space enough to walk between defendant's north track and the river.

There was conflict in the testimony as to how far LeMay had walked on the track before he was struck by the cars; some of the testimony being to the effect that he had walked on the track some sixty yards before being struck, and some to the effect that he had just stepped upon the track, and walked some four feet when struck by the cars and killed.

At the close of the testimony, the court at the instance of the plaintiff gave the following instructions: "1. The plaintiff, as the widow of Frank LeMay, brings this suit to recover $ 5,000 damages for the death of her husband, which she in her petition alleges to have been caused by the carelessness, negligence and unskillfulness of the defendant, its officers, agents, servants and employes, while running, conducting and managing certain cars of the defendant, by negligently, carelessly and unskillfully running two of said cars over her husband instantly killing him. The defendant in its answer denies the allegations of the petition, and sets up as a defense that the plaintiff's husband received the injuries from which he died by reason of his own negligence directly contributing thereto. The undisputed facts in this case show that the plaintiff's husband was, on or about the twenty-fourth day of May, 1886, run over and killed by two of the cars of the defendant, and that at the time he was so run over he was upon the track of defendant on Front street, between Delaware and Wyandotte streets in Kansas City, Missouri.

"2. There are two main questions to be determined by the jury First. Was the death of the plaintiff's husband caused by the negligence of defendant? Second. Did the plaintiff's husband, by his own negligence, directly contribute to the injury? The burden of proof is upon the plaintiff to establish by a fair preponderance of evidence the alleged negligence of the defendant; and the burden of proof is upon the defendant to establish the alleged contributory negligence of the plaintiff's husband.

"3. The court instructs the jury that if they believe from the evidence in the case that the plaintiff's husband at the time in question was run over and killed at the place in question by the defendant's cars, and that the servants agents or employes of the defendant negligently and carelessly managed the cars in question so as to run over the plaintiff's husband, then the verdict shall be for plaintiff in the sum of $ 5,000, unless the jury shall further find from the evidence that the defense of contributory negligence set up in this case by the...