19 S.W. 483 (Mo. 1892), Hyde v. The Missouri Pacific Railway Company

Citation:19 S.W. 483, 110 Mo. 272
Opinion Judge:Barclay, J.
Party Name:Hyde, Plaintiff in Error, v. The Missouri Pacific Railway Company
Attorney:Geo. P. B. Jackson for plaintiff in error. Wm. S. Shirk for defendant in error.
Judge Panel:Barclay, J. Chief Justice Sherwood and Black and Brace, JJ., concur.
Case Date:May 23, 1892
Court:Supreme Court of Missouri
 
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Page 483

19 S.W. 483 (Mo. 1892)

110 Mo. 272

Hyde, Plaintiff in Error,

v.

The Missouri Pacific Railway Company

Supreme Court of Missouri, First Division

May 23, 1892

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Plaintiff's action is for personal injuries, caused by alleged negligence of defendant. It is met by a denial of the negligence, and a charge of contributory negligence on plaintiff's part.

At a trial, the court instructed the jury that plaintiff was not entitled to recover, whereupon he took a nonsuit with leave, etc.

After unsuccessful motions to set that result aside, plaintiff appealed in due course.

His evidence established the following facts:

The defendant's railroad passes through Sedalia nearly east and west. Engineer street in that city crosses the defendant's tracks at about a right angle. Several blocks east of Engineer street is a parallel street known as New York avenue, crossing the tracks at nearly the same angle. The plaintiff's house was east of New York avenue in the triangle made by the tracks of the Missouri Pacific and the Missouri, Kansas & Texas railways, near their intersection. There is no street crossing between Engineer street and New York avenue. Third street runs east and west nearly parallel with the railroad, a little distance south of it at Engineer street, but intersecting the railway line before reaching New York avenue.

The tracks are considerably higher than Third street. At the point of intersection, the railroad is on an embankment, about twelve feet high, and the street abuts against it, forming a large mud hole at that point, and making the adjacent street bad for travel in wet weather. On the north side of the railroad, east of Engineer street, is the train dispatcher's office. East and north of this are the Missouri Pacific shops, and east of these are the roundhouses. Heard's addition to Sedalia lies north and east of the tract of land upon which these several railroad buildings are situated.

It was admitted upon the trial that Sedalia was a city of eighteen thousand population. It was further shown that, at the time of the accident, people were, and for a long time prior thereto had been, in the habit of using the tracks of the railroad company between Engineer street and New York avenue as a common passway; that employes in the shops and roundhouse so used the same, and that persons not connected with the road, men, women and children, also passed back and forth along these tracks, at all times in the day. But it affirmatively appeared from plaintiff's evidence, in the same connection, that defendant had objected to such use of the tracks, had posted signs there, warning people to keep off, and had had a special watchman to enforce those notices. Notwithstanding these objections many people continued to use the tracks as a thoroughfare as first stated.

Plaintiff himself admitted that the place where he was...

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