Lynch v. The St. Joseph & Iowa Railroad Company

• Citation: 19 S.W. 1114,111 Mo. 601
• Parties: Lynch v. The St. Joseph & Iowa Railroad Company, Appellant
• Decision Date: 17 October 1892
• Court: Missouri Supreme Court

19 S.W. 1114

111 Mo. 601

Lynch v. The St. Joseph & Iowa Railroad Company, Appellant

Supreme Court of Missouri, Second Division

October 17, 1892

Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.

Affirmed.

Brown & Craig for appellant.

(1) The petition does not plead that the accident resulted from a violation of the city ordinance; hence, it was error for the court to instruct on such ordinance. (2) So it was error to so instruct under the evidence in the case. Bishop on Non-Contract Law, sec. 436; Whitaker's Smith on Negligence, p. 1; Cooley on Torts, p. 630; Brown v Railroad, 49 Mich. 153. (3) The unreasonable doctrine has never been held by this court; in fact it has been uniformly held that the only duty which a railroad company owes to the trespasser on its track is not to injure him if it can be avoided after he is discovered to be in danger. Yarnall v. Railroad, 75 Mo. 575; Williams v Railroad, 96 Mo. 275; Zimmerman v. Railroad, 71 Mo. 477; Shaw v. Railroad, 104 Mo. 648; Barker v. Railroad, 98 Mo. 50. The same doctrine is generally held by the courts of last resort of other states. Toomey v. Railroad, 24 P. 1074; Railroad v. Black, 89 Ala. 313; Railroad v. Denson, 83 Ga. 266.

D. D Burnes and J. W. Boyd for respondent.

(1) Under the circumstances in this case it was the appellant's duty to exercise care and caution -- to keep a look-out -- in running its train at said place in said city, to avoid injuring pedestrians who might be on its track; and, it was also its duty to comply with the municipal regulations imposed upon it by the ordinance of the city. Bowman v. Railroad, 85 Mo. 533; Karle v. Railroad, 55 Mo. 476; Kelley v. Railroad, 75 Mo. 138; Fisher v. Galladay, 38 Mo.App. 531; Kelley v. Railroad, 95 Mo. 279; Burgman v. Railroad, 88 Mo. 678; Donohue v. Railroad, 91 Mo. 357; Petty v. Railroad, 88 Mo. 306. (2) The following proposition is universally regarded as the law: "Notwithstanding a party may be guilty of negligence in going onto a railroad track without looking or listening for a train, when he could have seen or heard it if he had looked or listened, still the company will be liable for his death if it could have avoided the accident by having observed the provisions of an ordinance regulating the rate of speed or requiring bell to be rung." Bergman v. Railroad, 88 Mo. 673; Kelley v. Railroad, 75 Mo. 139; Wernse v. Railroad, 81 Mo. 368; Scoville v. Railroad, 81 Mo. 434; Welsh v. Railroad, 81 Mo. 466; Kelly v. Railroad, 95 Mo. 279; Guenther v. Railroad, 95 Mo. 286; Dunkman v. Railroad, 95 Mo. 932; Hooker v. Railroad, 76 Wis. 54. (3) The ordinance applies with full force to this case. Merz v. Railroad, 88 Mo. 672. (4) Deceased was a licensee on the track. Lemay v. Railroad, 105 Mo. 361; Guenther v. Railroad, 95 Mo. 287; 76 Wis. 54.

OPINION

Thomas, J.

Plaintiff recovered judgment in the circuit court of Buchanan county in February, 1889, for $ 5,000 for killing her husband, and the defendant appeals.

I. The first point urged by defendant for reversal of the judgment is that the plaintiff's petition fails to state facts sufficient to constitute a cause of action. No objection to the petition was made in the court below prior to the verdict, except to the introduction of any evidence because the petition wholly failed to state a cause of action. The petition alleges that at the time of her husband's death, which occurred inside the limits of the city of St. Joseph, the ordinances of that city prohibited the running of a locomotive, engine, passenger car or freight car "upon or along any railroad track within said city at a greater speed than the rate of five miles per hour," and required that the bell of each locomotive or engine should be rung continually while running within said city; that her husband went upon defendant's track in said city at a point where it was used, and where defendant had permitted it to be used for public travel; that while he was so on said track defendant negligently ran its engine and train of cars onto and over him, thereby killing him; that, at the time of running over him, the train of cars was propelled within said city "at a greater speed than at the rate of five miles per hour;" that neither the bell nor whistle of the engine was rung or sounded as the train approached him, and that "by reason of the facts aforesaid she is and was damaged to the extent of $ 5,000."

The specific objection now made to this petition is that it fails to state "that the accident resulted from a violation of the city ordinance. Although the ordinance, the speed of the train and failure to ring the bell are set out with particularity, no attempt is made to connect those matters with the striking of plaintiff's husband." This point would probably have been well taken if it had been raised by demurrer, but we do not think it good on objection to the introduction of any evidence. Though inartificially drawn, the petition does not wholly fail to state a cause of action. An objection to a petition which states a cause of action imperfectly can be made only by demurrer or motion to make more definite and specific. McDermott v. Claas, 104 Mo. 14, 15 S.W. 995.

But the petition does state one ground of relief clearly and specifically, and that is that defendant negligently ran its train of cars over plaintiff's husband and thereby killed him, and the right of plaintiff to recover on the ground of defendant's failure to comply with the city ordinances could have been contested only during the subsequent progress of the trial, and the objection that plaintiff did not count on such failure nowhere appears in this record. But we think, taking the petition as a whole, it does count on the failure of defendant to comply with the ordinances though the averments in that particular are not as direct, concise and clear as they should have been, but they are not so defective in substance as would justify the court in holding the petition bad after verdict.

II. The next contention arises upon the instructions and the evidence.

The defendant's railroad was constructed and opened for business about the thirteenth day of October, 1887 -- the October next preceding the accident upon which this suit is founded. It entered the southern limits of the city of St. Joseph at a point near the corner of Eleventh and Atchison streets, running in a northwesterly direction, and, with a curvature to the right or to the north, through a tract of land called the Noble tract, which had never been laid off into streets, alleys and town lots, but was used for meadow, pasturage and various farming, gardening purposes, for a distance of about one-third of a mile, and thence past a tier of town lots to an intersection with Hickory street, making in all a distance of about one-half mile without having crossed any street, and thence about a mile north to the Union depot. Through all this distance it runs side by side with the Hannibal & St. Joseph and the St. Joseph, St. Louis & Santa Fe railroads, and the right of way of the three roads is fenced, and there is no crossing of the tracks of any of them between said Eleventh and Hickory streets. Defendant's railroad is on the north side, the Hannibal in the middle and the Santa Fe on the south, with a distance of from forty to fifty feet between them. The two last-named railroads had been constructed many years.

Prior to the construction of defendant's track the Hannibal Company had a fence on the north line of its right of way and inside this fence there was a path that was used by footmen and sometimes by wagons. There were four gates some distance apart through the fence, three of them being opposite respectively three tenement houses on the Noble tract, in one of which, situated about three hundred feet from the track, plaintiff's husband resided with his family. Defendant's track in front of these houses, and at the point where Mr. Lynch was killed, was placed on an embankment about four feet high, which was constructed against the fence, by which the foot of the embankment was supported. The fence extended about a foot above the top of the embankment. The gates described still remained in the fence, and...