50 Mo. 461 (Mo. 1872), Brown v. The Hannibal & St. Joseph R. Co.

Citation:50 Mo. 461
Opinion Judge:WAGNER, Judge.
Party Name:MARY BROWN, Respondent, v. THE HANNIBAL & St. JOSEPH RAILROAD COMPANY, Appellant.
Attorney:Hall & Oliver, for appellant. Wm. Henry, Jr., for respondent.
Court:Supreme Court of Missouri

Page 461

50 Mo. 461 (Mo. 1872)

MARY BROWN, Respondent,

v.

THE HANNIBAL & St. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

August Term, 1872

Appeal from Clinton Circuit Court.

Hall & Oliver, for appellant.

I. The fact that other persons crossed the railroad track at an improper place is no excuse for plaintiffs doing the same thing. To cross the railroad track at an improper place was a wrong, and the doing a wrong at one time is no excuse for repeating it.

II. There is no evidence in the case on which to base the first instruction. The evidence shows such negligence on the part of plaintiff as is both " " unaccountable and inexcusable." She not only crossed the railroad at an improper place, but she crossed it with a large sun-bonnet drawn over her head, so that she could neither see nor hear. Such carelessness is entirely inconsistent with a right to recover damages founded on the negligence of defendant. It is an act of negligence to cross the track of a railroad at any other than the regular crossing. It is also an act of culpable negligence to cross a railroad at any place, with the sight or hearing obstructed. In this case both these acts occurred, and the court therefore committed error in submitting the case to the jury under said first instruction. ( 19 Ill. 499; 20 Ill. 478, 487-8; 55 Penn. St. 401; 21 Wis. 257; 1 Allen 189; 39 N.Y. 366-7; 24 N.Y. 441.)

III. In this case as proved, the defendant was liable only for a willful injury or its counterpart, gross negligence. Nothing is better settled than the right of railroad companies to the lawful use of their roads, without let, hindrance or control of those who have no right to interrupt or molest them. If an adult place himself upon a railroad where he has no right to be, but where the company is entitled to a clear track and the benefit of the presumption that it will not be obstructed, and should be run down, the company would be liable only for willful injury or gross neggence. (47 Penn. St. 301, 303-4; 8 Barb. 379, 380; Shear. & Redf. Negl. 374, note 1; id., § 488; 24 N.Y. 440; 38 N.Y. 443; 39 N.Y. 366-7; 4 N.Y. 530, 532, 540, 541.)

IV. The sixth instruction asked by defendant should have been given. ( 24 N.Y. 441; 47 Penn. St. 304.)

V. The verdict of the jury was not only without evidence, but it was against evidence. It was manifestly given under prejudice, and should not be permitted to stand. The whole evidence and every part of it shows that plaintiff was guilty of careless ness or recklessness, and that defendant used all due and proper care.

Wm. Henry, Jr., for respondent.

I. The second instruction given for plaintiff below is proper. ( Kennedy v. North Mo. R.R. Co., 36 Mo. 351, 364; Johnson v. Hudson River R.R. Co., 20 N.Y. 65; Fero v. Buffalo & State Line R.R. Co., 22 N.Y. 209, and cases cited; Hill. Torts, 340, § 2; 1 Redf. 520, 522; Shear. & Redf. Negl. 18, § 21; id. 25, § 24; id. 552, § 477.)

II. The third instruction given for the plaintiff below is proper. ( Huelsenkamp v. Citizens' Railway Co., 37 Mo. 537, 552-3, and cases cited; Morrissey v. The Wiggins Ferry Co., 43 Mo. 380, 383; Shear. & Redf. Negl. 10, § 10.)

III. The fifth instruction is not erroneous, and might have been much stronger or more favorable to the plaintiff. ( Kennedy v. North Mo. R.R. Co., supra; 36 Mo. 365; 2 Greenl. Ev. 280, §§ 267-8.)

IV. The court below was clearly right in refusing the sixth and last instruction asked by the defendant. It substantially tells the jury that there can be no recovery for an injury done by a railroad company on its track, where there is no street or road crossing, which is clearly wrong; for even a willful trespasser assumes only the risks which are incident to and ordinarily result from the position in which he places himself--the risk of mere accident--and does not discharge the defendant from the use of ordinary care and prudence. (1 Hill. Torts, 145; Kerwhaker v. C. C. & C. R.R. Co., 3 Ohio St. 172.) The established law in cases like this is that the plaintiff may recover, although a trespasser at the time and contributing to the mischief, if...

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