Reardon v. Missouri Pac. Ry. Co.

• Decision Date: 28 February 1893
• Citation: 114 Mo. 384,21 S.W. 731
• Parties: REARDON v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

21 S.W. 731

114 Mo. 384

REARDON v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

February 28, 1893.

RAILROAD COMPANIES — INJURY TO PERSON ON TRACK — EVIDENCE — DAMAGES — INSTRUCTIONS.

1. In an action against a railroad company to recover for personal injuries, a complaint alleging that defendant's servants, after seeing plaintiff on the track in a perilous position in time to stop the cars under their charge, and avert the accident, negligently failed so to do, and ran over plaintiff's right leg, states a cause of negligence, for which defendant was liable to plaintiff, whether he was a trespasser or servant of the company, and is good after verdict.

2. There was no error in the admission of evidence that the engineer and fireman were in charge of the cars.

3. There was no error in the admission of evidence as to plaintiff's occupation before the accident, and the state of his health, as the facts were necessary to enable the jury to estimate the damages, if any.

4. The admission of evidence previously excluded renders the propriety of the exclusion immaterial.

5. The evidence showed that plaintiff stepped on defendant's track, in the yard, and, hearing the danger whistle, looked back, and saw an approaching train, when he fell on the track, and appeared to be struggling to get off; that the train was running from 7 to 12 miles an hour, and could have been stopped in a distance varying from 75 to 400 feet; but that the engineer did not reverse the engine, or apply sand, and ran over plaintiff's leg. Held that, even if plaintiff was a trespasser, it was for the jury to determine whether defendant's servants used ordinary care to avert the accident.

6. Defendant would be liable if its servants, after seeing plaintiff in a perilous position in time to stop the train, in safety to themselves and those on board, by the use of ordinary means, failed to exercise ordinary care to avert the accident.

7. There is no inconsistency between the previous instruction, requiring defendant's servants to use ordinary care, and one requiring defendant's servants to use any means consistent with the safety of themselves and the train to avert the accident.

8. An instruction that defendant would be liable if its servants, after seeing plaintiff step on the track, failed to use ordinary care in stopping the train, was inconsistent with previous instructions, and erroneous, since it was not necessary to stop the train till plaintiff, by falling, was in a perilous position.

9. The objection that all the instructions are inconsistent with an instruction given at defendant's request is unavailing where the latter instruction, given at defendant's request, was erroneous.

Appeal from circuit court, Johnson county; Charles W. Sloan, Judge.

Action by Edgar Reardon against the Missouri Pacific Railway Company to recover for personal injuries caused by the negligence of defendant. There was judgment for plaintiff, and defendant appeals. Reversed.

The other facts fully appear in the following statement by GANTT, P. J.:

This action was begun in the circuit court of Cass county, and a change of venue granted to Johnson county. The petition alleges that while plaintiff was on the track of the defendant, in an exposed and dangerous condition, the servants of the defendant, who were controlling, running, and managing its cars, ran the same upon and over plaintiff's right leg; that, at the time, they were running said locomotive and cars in a careless, negligent, and reckless manner: that said servants and agents could, and in fact did, see the plaintiff upon the track, in such perilous position, in due time to have checked or stopped said cars, and averted the injury to plaintiff; and avers that, by reason of said negligence, he lost his leg, and was damaged in the sum of $20,000. The answer was a general denial and contributory negligence. Reply as to the new matter. The case was tried on the 15th day of May, 1889, and the evidence adduced at the trial tended to show that, on the morning of the accident, defendant's Mogul engine No. 906 was pulling a local freight train east through the yards of defendant at Pleasant Hill; that plaintiff had gone to said yards to see his brother-in-law, A. H. Page, who was an engineer in defendant's employ, and whose engine was standing on track No. 2, on the south side of the main track, to learn from said Page whether his (plaintiff's) brother would pass through Pleasant Hill, that he might take a lunch to him; that, when plaintiff left Page's engine, he went directly to and upon the main track, and started to walk east, as though going down to the Wyoming street crossing, where he would leave the yard to go direct to his mother's house, which was a little west of the line due north from Page's engine. Plaintiff himself testified that he was not going to the crossing, but was going diagonally northeast, across the track, and out of the yard. The preponderance of the evidence showed that he took several steps east while between the rails of the main track. At the time engine No. 906, with a train of cars attached to it, was approaching from the west. That, almost immediately after plaintiff stepped upon the track, the engineer sounded the alarm or danger whistle, being several short blasts. Plaintiff, upon hearing the whistle, turned his head, looked over his right shoulder in the direction of the approaching engine, and at once fell backwards on the track. He was then with his head southwest, his legs being across the south rail, and his feet southeast. He rolled over to the east, turned upon his face, and appeared to be struggling to get himself entirely off the track, and succeeded in doing so, with the exception of his right ankle and foot, which were run upon by the train. Plaintiff himself testified that, when he looked back, his toe tripped upon something, and he fell forward between the rails, then rolled over, and got all of his person off the track except his right foot and ankle. It also appeared that plaintiff had, prior to the injury, suffered a paralytic stroke on his left side, and that said stroke disabled him from using his left arm and leg with freedom. There was a vast amount of evidence adduced by both parties, and, as is usual in such cases, there was a great diversity of opinion among the witnesses upon the questions of the distance at which the engine was from plaintiff at the time he got upon the track, the distance at which he was from the engine at the time he fell upon the track, the distance within which the train could have been stopped, its speed at the time, and as to the best means of stopping an engine under such circumstances. The engineer testified he did not reverse his engine, nor apply sand. He was asked if on a former trial he did not answer that the most effectual way to stop an engine was to reverse it, and he answered, "Oh, yes;" and, when asked why he did not reverse his engine on this occasion, said, "Perhaps I didn't think of it at the time." The evidence on part of plaintiff tended to show the train could have been stopped in a distance of from 75 to 100 feet, and, on part of defendant, from 300 to 400 feet. The train was running from 7 to 12 miles an hour. The jury returned a verdict for plaintiff for $4,500.

The court gave the following instructions for plaintiff: "(1) The court instructs the jury that if they believe from the evidence that plaintiff was struck and injured by the locomotive of the defendant, as stated in the petition; that the agents of the defendant, in charge of said engine, saw plaintiff in a position of imminent danger before he was struck; that the position of plaintiff was such that an ordinarily prudent person running a locomotive would have believed that he was not going to be able to get off the track in time to avoid the injury; that the agents of defendant, running said locomotive, failed to exercise ordinary care — that is, failed to use their ordinary means and appliances for stopping the engine and train — after plaintiff's condition was seen; and that, if ordinary care had been used by said agents after plaintiff's perilous position was seen, the train would have been stopped or checked, and the injury averted, — then defendant is liable, and you should find for the plaintiff. (2) If the jury find and believe from all the evidence in the case that the plaintiff was on the track of defendant in the town of Pleasant Hill, Cass county, Mo.; that the agents and servants of defendant, operating an engine and cars of defendant on its line of railway in said town of Pleasant Hill, saw the plaintiff, while so doing, in front of said engine and cars, and became aware that said plaintiff was in a dangerous condition, in time to have so stopped or slackened the speed of said engine and cars, in time to have avoided the injury to plaintiff, in safety to themselves and the said engine and cars, but failed to do so, — then the immediate cause of the injury was the negligence and want of care of defendant's servants and agents, directly causing or resulting in the injury of the plaintiff, Reardon; then the jury are instructed that the defendant is responsible for such negligence and carelessness on the part of its agents and servants, and the jury will find for plaintiff. (3) The jury are instructed that, except at a public road and a street crossing, a railroad company is entitled to the exclusive use of its track, and any person walking thereon, except at such places, is wrongfully on such track; yet the fact that such person is on the property, wrongfully and negligently, does not discharge them from the observance of due care towards him after he is discovered in a dangerous and exposed condition by those in charge; nor does the fact of his so being on the track give defendant or its employes in running trains the right to run upon and injure him, if it can be avoided by any means in the power of such...