Hyde v. The Missouri Pacific Railway Company
| Decision Date | 23 May 1892 |
| Citation | 19 S.W. 483,110 Mo. 272 |
| Parties | Hyde, Plaintiff in Error, v. The Missouri Pacific Railway Company |
| Court | Missouri Supreme Court |
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 run over was "what is known as the railroad yards; it was not on any street at all."
The mishap took place about half past eight or nine o'clock P. M. of "a dark, drizzling, rainy night," in March, 1883. Plaintiff was a carpenter. On his way homeward he came upon defendant's line at the Engineer street crossing, and thence walked on the track eastward some two hundred yards, when he was overtaken and hit by a freight car moving in the same direction. It was one of a train of three box cars, pushed by a "pony" or switching locomotive at the west end of the train. The engine had a headlight, pointed eastward, but its rays were considerable shortened and obscured by the cars. There were three switchmen on the train, but the evidence fairly justifies the inference that none of them was on the lookout for persons on the track, or gave any warning to plaintiff of the train's approach. A friend of plaintiff was walking by his side at the time, and was likewise struck by the car. Plaintiff's son was immediately behind them, but he heard the "clicking of the rails," and observed the danger in time to spring aside and avoid a collision. As he did so he called to his father, but without effect. When plaintiff was knocked down, the train came to a stop within the distance of about one car length.
The plaintiff was somewhat hard of hearing at times, before the accident. The son testified that none of the party carried an umbrella, though it was raining; and that he supposed a man could be seen that night a distance of twelve or fourteen feet. There was no light on the car that struck plaintiff.
Evidence was also introduced showing how far a person could be seen under ordinary conditions upon the track at the place where the injury occurred, and in what distance the train which caused the injury could have been stopped with the exercise of ordinary care.
On these facts the trial court forced plaintiff to a nonsuit, and against that ruling the pending appeal is directed.
Affirmed.
Geo. P. B. Jackson for plaintiff in error.
The court erred in sustaining the demurrer to the evidence: (1) Because it was not necessary, in order to prove that those in charge of defendant's train saw the plaintiff in a dangerous position on the track, to present direct and positive evidence of that fact; all the circumstances were to be considered, and the jury could well have found from the evidence that those in charge of the train discovered the plaintiff's danger in time to have averted the injury. Rine v. Railroad, 100 Mo. 228-235. (2) The evidence established that it could not fairly be presumed that the defendant would have a clear track at the time of the injury to plaintiff, and that a knowledge of the place and its use, and the experience of the defendant in operating its trains over that part of the road, would cause the defendant to anticipate the presence of persons upon the track. The defendant was, therefore, liable for the injury to the plaintiff, either if his danger was actually discovered, or if by the exercise of ordinary care it might have been discovered in time to have averted the injury. Brown v. Railroad, 50 Mo. 461-7; Isabel v. Railroad, 60 Mo. 475; Harlan v. Railroad, 65 Mo. 24; Frick v. Railroad, 75 Mo. 610; Scoville v. Railroad, 81 Mo. 434; Townley v. Railroad, 53 Wis. 626; Davis v. Railroad, 58 Wis. 646; Williams v. Railroad, 96 Mo. 275; LeMay v. Railroad, 16 S.W. 1049.
Wm. S. Shirk for defendant in error.
The demurrer to plaintiff's evidence was properly sustained (1) It is not alleged in plaintiff's petition, but those in charge of the train discovered the appellant's danger in time to have avoided the injury. Nor is there any evidence from which such a deduction can be drawn. And if there was it would be wholly immaterial and irrelevant under the issues. This is apparent from an examination of the petition and evidence. Hence, Rine v....
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