Guenther v. St. Louis, I.M. & S. Ry. Co.

• Decision Date: 22 December 1891
• Parties: Guenther v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

18 S.W. 846

108 Mo. 18

Guenther v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri, Second Division

December 22, 1891

Appeal from St. Louis City Circuit Court. -- Hon. J.E. Withrow Judge.

Affirmed.

H. S Priest for appellant.

(1) The demurrers to the evidence should have been sustained. First. The deceased was a trespasser upon the defendant's tracks, and its servants owed him no duty except that of not wilfully injuring him, and of this there is no evidence. Barker v. Railroad, 98 Mo. 50; R. S. 1889, sec 2611. Second. The deceased was guilty of contributory negligence, which continued down to the very moment of the collision, and was the most conspicuous cause in its production. The inexorable principle, however little the impression it makes in some cases, is that if the injured party could by the exercise of ordinary care have avoided the results of the defendant's negligence he cannot recover. Schaabs v. Wheel Co., 56 Mo. 173; Smith v. Railroad, 61 Mo. 590; Fletcher v. Railroad, 64 Mo. 490; Lenix v. Railroad, 76 Mo.; Hixon v. Railroad, 80 Mo. 335; Bell v. Railroad, 86 Mo. 612; Kelly v. Railroad, 88 Mo. 534; Yancey v. Railroad, 93 Mo. 433; Thompson, Negligence, 1149; Railroad v. Wynn, 19 Ga. 440; Morris v. Railroad, 4 Zab. 268; Mackey v. Railroad, 27 Barb. 528; Sheffield v. Railroad, 21 Barb. 339; Railroad v. Kean, 28 Am. & Eng. R. R. Cases, 580; Yniester v. Railroad, 29 Am. & Eng. R. R. Cases, 297; Nichol's Adm'r v. Railroad, 25 Rep. 172; O'Brien v. McClinchy, 68 Mo. 552; Dlauhi v. Railroad, 16 S.W. 281; Boyd v. Railroad, 16 S.W. 909. (2) The court erred in admitting evidence of the frequency of the use of the track by persons as a footway. (3) The plaintiff's instruction was wrong. First. It ignores the issue made by the pleadings. Second. It is inapplicable to the character of the case made by the evidence. (4) Each of the refused instructions requested by defendant should have been given. They each declare elementary propositions of law peculiarly applicable to this case.

Rassieur & Schnurmacher for respondent.

(1) Plaintiff's evidence did make out a prima facie case. Besides defendant is not in a position to ask this court to review the action of the trial court in overruling its demurrer at the close of plaintiff's case, because it proceeded to introduce evidence in its own behalf, and thereby waived the demurrer. Bowen v. Railroad, 95 Mo. 268; Guenther v. Railroad, 95 Mo. 286; Dahlstrom v. Railroad, 96 Mo. 99; Eswin v. Railroad, 96 Mo. 290; McPherson v. Railroad, 97 Mo. 253; Hilz v. Railroad, 101 Mo. 36. (2) Although plaintiff's husband was guilty of contributory negligence in being a trespasser on defendant's track, this of itself will not defeat plaintiff's right of recovery. Hicks v. Railroad, 64 Mo. 430; Rine v. Railroad, 88 Mo. 392; Rine v. Railroad, 100 Mo. 228; Dunkman v. Railroad, 95 Mo. 232; Barker v. Railroad, 98 Mo. 50; Kellny v. Railroad, 101 Mo. 67; Guenther v. Railroad, 95 Mo. 286; Williams v. Railroad, 96 Mo. 275; Frick v. Railroad, 75 Mo. 595; Hanlon v. Railroad, 104 Mo. 381. (3) The court properly overruled defendant's objection to the evidence relating to the use of the track as a footway. First. Because defendant objected solely on the ground that the evidence was incompetent. The evidence was clearly competent. On defendant's theory, if there was any objection, it was that the evidence was immaterial and irrelevant. But defendant did not interpose such objection in the trial court, and, therefore, cannot do so here. Second. The evidence, however, was material. If persons were, and for a long time had been, in the habit of walking along the defendant's tracks at the point of the accident, then defendant's servants had reason to apprehend their presence there, and it became their duty to "be at their posts and to keep a lookout on the track to avert accidents." Guenther v. Railroad, 95 Mo. 286, and cases cited under point 2. (4) The plaintiff's instructions were correct, and defendant's were properly refused. Guenther v. Railroad, 95 Mo. 286. (5) The cause was retried in the circuit court in conformity to the previous decision of this court, and the same points now urged were then presented. For these reasons alone the judgment should be affirmed. Adair Co. v. Ownby, 75 Mo. 282; Bank v. Taylor, 62 Mo. 338; Overall v. Ellis, 38 Mo. 209.

OPINION

Thomas, J.

This is the second appeal by defendant in this case. 95 Mo. 286. This record presents substantially the same facts that the former record presented, except that plaintiff offered no evidence as to whether or not the railroad embankment at the point of the accident was within the line of Main street of the city of St. Louis, and we refer to the opinion of the court on the first appeal for a statement of the facts and the issues of the case.

On a retrial the court gave the following instruction at the instance of the plaintiff: "The court instructs the jury that, although the deceased Guenther was guilty of negligence in walking upon defendant's track, yet if the jury believe from the evidence that while so upon the track said Guenther became in imminent peril of being struck by the defendant's train, and the defendant's employes in charge of said train became aware of his peril of being struck, in time to have enabled them, by the exercise of ordinary care, to stop said train, and to have averted the injury to said deceased, or if the jury believe that said employes, by the exercise of ordinary care, could have become aware of his peril in time to have done so; and that they failed to exercise such care and stop said train, and that by reason of the failure to stop said train the said Guenther was struck and killed, then the jury should find for plaintiff. If the jury find a verdict for the plaintiff they will assess the damages at the sum of $ 5,000. Under the law the verdict, if for the plaintiff, cannot be for a larger or smaller sum."

The defendant asked and the court gave the following: "If the jury find from the evidence that the deceased, Jacob Guenther, stepped upon the western track of the defendant's...