Yancy v. Wabash St. Louis & Pacific Railway Co.

• Decision Date: 19 December 1887
• Citation: 6 S.W. 272,93 Mo. 433
• Parties: Yancey, Appellant, v. The Wabash, St. Louis & Pacific Railway Company et al
• Court: Missouri Supreme Court

6 S.W. 272

93 Mo. 433

Yancey, Appellant, v. The Wabash, St. Louis & Pacific Railway Company et al

Supreme Court of Missouri

December 19, 1887

Appeal from Hannibal Court of Common Pleas. -- Hon. Theodore Brace Judge.

Affirmed.

R. E Anderson for appellant.

(1) The act of impelling a detached car over a thoroughfare crossing was, per se, quasi-criminal negligence. Brown v. New York, 32 N.Y. 597; 6 Am. and E. R. R. Cas. 125, foot. And so likewise was the creation therein of a speed greater than the maximum prescribed by city ordinance; and the deceased being under no duty to look out for such acts of negligence, could not be negligent in failing to discover same. There can be no negligence except in violation of a corresponding duty. Langan v. St. Louis, 72 Mo. 392 398. (2) The brakemen on the detached car could not presume that the public would look out for their quasi-criminal negligence, and could not assume that two wayfarers approaching the crossing in obvious ignorance of such danger, would discover it of their own motion, and the actions of the wayfarers, in approaching the track, constituted notice to the brakemen of the imminent peril of said wayfarers, after which the brakemen were guilty of a new and cumulative negligence in not giving oral warning, and also in not using the brake to retard the speed of the car -- the car being empty and running up grade and easily retarded, and the deceased being nearly across the track when struck. Meyers v. Railroad, 59 Mo. 223, 231; Kelley v. Hannibal, 75 Mo. 138; Werner v. Citizens, 81 Mo. 368; Wharton on Neg. (2 Ed.) secs. 348, 388. (3) In the violation of several city ordinance provisions on the subject, and in impelling the detached car in lineal travel on a city street, over the thoroughfare crossing without warning or lookout, the defendants became liable irrespective of any inadvertent negligence of the deceased. Bergman v. Railroad, 88 Mo. 678; Keim v. Railroad, 90 Mo. 314; Sess. Acts, 1881, p. 79; Huckshold v. Railroad, 90 Mo. 548. (4) The Missouri Pacific having authorized and consented to the use of its track by Wabash servants and rolling stock, for purposes of cotton transfer, thereby made said Wabash servants pro hac vice its own servants and agents, and as said servants were engaged in said so authorized service, the said servants, as to said Missouri Pacific, were not trespassers on the track (Cousins v. Hannibal, 66 Mo. 572), although exercising their authority in an improper or forbidden or malicious manner. Garretzen v. Duenckel, 50 Mo. 104; Perkins v. Railroad, 55 Mo. 201. (5) The track of the Missouri Pacific was a part of the machinery which caused and inflicted the injury. It was an agency, without which the injury could not have occurred. It was furnished by the Missouri Pacific in cooperation with the Wabash for a joint purpose in a common enterprise, and the Missouri Pacific is responsible for such misuse of its track. The Missouri Pacific was a participant in the transaction. Neither company enjoyed a contractual relation with deceased. Smith v. Railroad, 85 Mo. 418; Farley v. St. Louis, 72 Mo. 338. It was the duty and business of the Missouri Pacific to see that its track crossing should be safe. (6) The Missouri Pacific could not impose or use its track on a public street, except in the exercise of a public franchise. It could not delegate to any one, responsible or irresponsible, the liability for misuse of such franchise or track. Such delegation would be ultra vires. It must be liable, either as principal or guarantor.

H. S. Priest and Geo. S. Grover for respondents.

(1) The negligence of Jeremiah Yancey in failing to look or listen for the approaching car was the proximate cause of his death, and destroyed plaintiff's right to recover in this action. Harlan v. Railroad, 64 Mo. 480; Moody v. Railroad, 68 Mo. 470; Henze v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Lenix v. Railroad, 76 Mo. 68; Powell v. Railroad, 76 Mo. 80; Hickson v. Railroad, 80 Mo. 335; Taylor v. Railroad, 86 Mo. 457; Kelley v. Railroad, 88 Mo. 534. (2) As Yancey was struck and killed by the car simultaneously with his stepping upon the track in front of it, no negligence can be imputed to the brakeman in charge of the car. He was not required to stop the car until Yancey's danger was discovered. That danger did not exist until it was too late to avert it. Cagney v. Railroad, 71 Mo. 484; Harlan v. Railroad, supra; Kelley v. Railroad, 75 Mo. 138; Nelson v. Railroad, 68 Mo. 593. (3) The Wabash, St. Louis & Pacific Railway Company is primarily and solely liable in this case, if any liability exists. The mere fact that the track where Yancey was killed belonged to the Missouri Pacific Railway Company does not render that company responsible in any manner for this casualty. So far as this action is concerned, the Wabash, St. Louis & Pacific Railway Company was, in the eye of the law, the owner of the track at the point where the accident occurred. Pierce on Railroads [Ed. 1881] 282; Fletcher v. Railroad, 1 Allen, 9; Proctor v. Railroad, 64 Mo. 112; Farley v. Railroad, 72 Mo. 338; Seymour v. Railroad, 3 Bissell, 43; Stettler v. Railroad, 46 Wis. 497; Railroad v. Campbell, 86 Ill. 443; Haff v. Railroad, 14 F. 558. (4) When the rule obtained that a railway company could not lease its property it was then held that the owner was liable for all casualties happening in its operation. But our statutes, authorizing the leasing of railways and compelling them to connect and receive each other's cars, loaded or empty, etc., has changed the reason of the old rule, and hence the rule itself. R. S., sec. 790; Railroad v. Barron, 5 Wallace, 90; Railroad v. Dunbar, 20 Ill. 624; Railroad v. Whipple, 22 Ill. 105.

OPINION

Norton, C. J.

This is an action to recover damages for the killing of plaintiff's husband, occasioned, as alleged in the petition, by the negligence of defendants, in operating its cars on First street, in the city of Hannibal. The answer besides being a general denial, set up contributory negligence on the part of deceased. On the trial, the court, at the close of plaintiff's evidence, instructed the jury that, under the pleadings and evidence, plaintiff was not entitled to recover. Under the...