16 S.W. 11 (Mo. 1891), Gurley v. Missouri Pac. Ry. Co.

Citation:16 S.W. 11, 104 Mo. 211
Opinion Judge:Gantt, P. J.
Party Name:Gurley v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest for appellant. Adams & Buckner also for appellant. R. T. Railey and Whitsett & Jarrott for respondent.
Case Date:April 13, 1891
Court:Supreme Court of Missouri
 
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Page 11

16 S.W. 11 (Mo. 1891)

104 Mo. 211

Gurley

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

April 13, 1891

Page 12

Appeal from Cass Circuit Court. -- Hon. C. W. Sloan, Judge.

This is an action for damages based upon the alleged negligence of defendant in carelessly and negligently driving and forcing certain loose cars on its house or sidetrack, in the town of Pleasant Hill, Missouri, against some stationary cars, near a crossing on said track, whereby the plaintiff was, without warning caught between the cars on the crossing, and the fleshy portion of his thigh mashed.

The answer was a general denial, and further alleged that said crossing was not the only means of access for footmen to defendant's said depot or platform at the northerly end thereof; but defendant avers that the truth is that said crossing was not a public one, but only a private path or footway across one of its tracks in Pleasant Hill, for the use of the employes of defendant; that defendant's said depot at Pleasant Hill is located between two streets, laid out nearly parallel with each other, and crossing the tracks of defendant; that it has a platform upon which persons having business with it at its said depot approach the same, to which platform its depot is connected, extending to each of said streets; that the north boundary of the street on the south side of its depot is a short distance from where plaintiff attempted to cross the track, as alleged in his petition; that plaintiff had resided for many years in the city of Pleasant Hill, and was well acquainted with the locality, and knew, or ought to have known, that the two streets aforesaid were such crossings as are contemplated by the statute, and that the place where he received his alleged injuries was not such a crossing.

And defendant further avers that said plaintiff knew, or ought to have known, that the track over which he attempted to cross and received his alleged injuries, as stated in his petition, and lying between the streets aforesaid, was daily and habitually used by defendant as a sidetrack for its trains to pass each other, and upon which to make up trains, and for the temporary storage and loading of its cars, without giving any signal or warning; that the space between the cars, between which plaintiff attempted to cross, was a narrow one, the said cars being close together, with barely room for a person to pass between them; and defendant avers that the said plaintiff, in attempting to pass between the said cars under the circumstances and surroundings hereinbefore set forth, voluntarily took upon himself the risk of such attempt, and any injuries which he received thereby were caused in whole or in part by his own negligence and carelessness, which directly contributed thereto.

Evidence: The evidence introduced by plaintiff tended to show that about the years 1865 or 1866 the then owner of the Planters' House, a Mr. Brown, laid two planks from his house to the depot, for the convenience of the boarders at his house. About the year 1872 Mrs. Henry took the house, and it was used as an eating house for defendant, and it had a walk from the hotel to the depot platform for the convenience of its patrons. In 1875 the house was abandoned for this purpose, and the Atlantic House was used as an eating-house by the railroad company; that the proprietor of the Planters' House, for his own convenience, took up and relaid the walk, and kept it in repair after the eating-house was changed to the other hotel; that from the Planters' House to the depot, by way of this walk, was thirty steps nearer than to go by the way of the public street and walk; that the depot is constructed between Wyoming and Commercial streets in Pleasant Hill, which are parallel with each other, and the depot platform on the south, extending from one street to the other; that there was at that time an open space between the two streets north of the depot, where people could and did cross the tracks; that the track at which the injury occurred was north of the depot, and was a switch called the house or team and delivery track, where for years all the transfers were made, change of freight, loading and unloading, and where those cars were made up into trains, and was used sometimes as a passing track; that the defendant was continuously setting cars on that track, and taking them out; that the crossing was closed a great deal of the time by cars standing across it; that it was not a public road or crossing, but a private one, and was kept open or closed as the business of the defendant demanded.

This track had a descending grade from Wyoming street towards the crossing, and plaintiff's evidence disclosed the fact that boys had frequently been seen to take off the brake on the cars standing thereon, and they would start and run down the track by their own weight. The plaintiff's evidence tended to show that just before the injury cars were seen moving in the yard west of Wyoming street, and were kicked in on this switch track by an engine in the yard. No one, however, saw the accident but plaintiff and his son. One of the plaintiff's witnesses testified that he had just crossed between the cars when he met the plaintiff going towards them; that the space was so narrow that he was obliged to go through sideways; that it was such a dangerous place, by reason of the proximity of the cars, that he expected that either he or some one else would get injured there, and as soon as he heard plaintiff halloo he knew he had got hurt.

The plaintiff's son testified that he was with his father when he was hurt; that he (the son), when he got within two feet of the car, stopped and listened. At that time his father was half a foot ahead of him. He saw no engine nor moving cars. He says: "My father went in between the cars before I did. When my father went through I was right behind him. At the time he was struck, I just had my hands on the side of the cars, one hand on each car. I was going through if he got through all right. I concluded I could not get through I thought I would get through if he got through all right."

The plaintiff himself testified that at the time of the trial he was sixty-two years of age, and had lived in Pleasant Hill since 1871; that on the twenty-second day of January, 1886, a little after eight o'clock in the evening, he, with his son, started for the defendant's depot on business of his own, but not with the defendant; that he went on the walk from the Planters' House, and when he got to the track he stopped and looked both ways. Had been "going across railroad tracks a good many years, and it was natural for me to look both ways, and saw no indications of any moving train. Did not hear anything. Heard no signal. After I looked and listened, I started to go through, and it seemed to be instantaneous, for as soon as I got through between the drawheads there was a crash came and the racket seemed to be right upon me." He further testified that he knew the purpose for which the sidetrack was used. He had frequently passed over that walk for a good many years, and frequently passed between the cars. Sometimes the cars were closer together than others. At this time there were two or three feet between the drawheads of the two cars. Plaintiff had passed through between the cars two hours before his injury. He was confined to the house about three months as the result of his injury. His physicians' bills were $ 165, and expenses for nursing were $ 51, which he expected to pay when he was able. He was a traveling man, earning $ 4 or $ 5 per day, selling on commission before his injury, and could not then make as much.

From the testimony of the physicians examined by plaintiff it appears that the injury consisted of a lacerated wound on the inner surface of the thigh, the deepest part of which was three-quarters of an inch. It involved no bones, but was simply a flesh wound. Dr, Beattie, who was appointed to examine the plaintiff, testified that he discovered a scar in front of plaintiff's thigh, measuring twelve inches in length. There was no injury to the bone, but was confined to the soft tissues. There was nothing to lead the doctor to believe that any muscle was destroyed, but was told by plaintiff that one motion of the limb was impaired; that was the motion of crossing the limb on the other; that the wound was entirely healed, and that there was nothing in the wound itself that would indicate that plaintiff was then suffering, or that would impair the usefulness of the limb.

The court, in plaintiff's second instruction, told the jury that if they believed from the evidence that defendant erected and maintained, or, after erecting, permitted others to maintain, a public crossing at said point, over its sidetrack, at which persons going to and from said depot were in the habit of crossing said sidetrack, with the permission, consent or knowledge of the defendant's agents, servants or employes; that defendant was in the habit of keeping such of its cars as were not required for immediate use at such points on its sidetrack; that at the time of the alleged accident defendant had some of its cars standing on said sidetrack, at said crossing, some on one side and some on the other side of said crossing; that they were uncoupled thereat and separated so as to permit footmen to pass between them at and on said crossing, in going to and from said depot; that while said cars were so standing and separated at said crossing the plaintiff attempted to pass thereat, for the purpose of reaching said depot; that, at the time...

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