60 Mo. 475 (Mo. 1875), Isabel v. The Hannibal & St. Joseph Railroad Co.

Citation:60 Mo. 475
Opinion Judge:WAGNER, Judge.
Party Name:HERMAN ISABEL, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
Attorney:Carr & Leach, for Appellant. M. A. Low, for Respondent.
Court:Supreme Court of Missouri
 
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Page 475

60 Mo. 475 (Mo. 1875)

HERMAN ISABEL, Respondent,

v.

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

May Term, 1875

Appeal from Caldwell Circuit Court.

Carr & Leach, for Appellant.

I. The law requires railroad companies to enclose their roads with a fence where it passes along inclosed or cultivated fields, etc. The petition fails to show that Isabel was killed at a point embraced by any of the above requisitions.

II. For the first time the idea is advanced, that fences are erected to keep human beings from railroad tracks.

The objects of fencing railroads are simply the preservation of the lives of passengers, the property of the railroad companies, and to prevent stock from getting upon the track. And failure to fence is no proof of negligence, so far as it affects the case at bar.

III. The want of vigilance and care on the part of the grandmother was the direct, sole and absolute cause of the wrong complained of. If she had not been negligent in the discharge of her duty, the accident would not have happened.

It has been held negligence as a matter of law to allow a child of about two years to go into the streets unattended. ( Hartfield vs. Roper, 21 Wend. 615; Callahan vs. Bean, 9 Allen 401; Kreig vs. Wells, 1 E. D. Smith, 74; Mangum vs. Brooklyn R. R. Co., 36 Barb. 230; Glassey vs. Hestonville, etc., R. Co., 57 Penn. St., 172; Singleton vs. Eastern Counties R. Co., 7 C. B. [N. S.], 287; Boland et ux. vs. Mo. R. Co., 36 Mo. 484; Philadelphia & Reading R. R. Co. vs. Spearen, 47 Penn. St., 300; Holly vs. Boston Gaslight Co., 8 Gray 123; Wright vs. Malden, etc., R. R., 4 Allen 283.)

IV. It is unlawful for any one not connected with the road to walk along the track of any railroad. (Wagn. Stat., 311, § 43, last clause.)

An engineer is not bound to foresee the presence of any one on the track, even when it is open to an adjoining highway. (Shearm. & Redf. Neg., § 493; Philadelphia & Reading R. Co. vs. Hummell, 44 Penn. St., 375.)

M. A. Low, for Respondent.

I. It was not error to permit witnesses to testify that the railroad was not fenced at the place of the accident. If from the want of fence, accidents were more liable to occur at that point than would have been the case if the road had been fenced, and the company had notice of this fact, it was the duty of the defendant's employees to use more than ordinary care and diligence to prevent such accidents, and to run their trains with reference to such circumstances. ( Schmidt vs. Milwaukee etc. R. R. Co., 23 Wis. 186; Singleton vs. Eastern, etc. R. R. Co., 97 Eng. Com. Law, 287.)

The disregard of the positive command of the statute was negligence ( Karle vs. K. C., etc. R. R. Co., 55 Mo. 476), and the company were liable for all damages flowing naturally from such default. And regardless of the statute, it would seem that where a railroad company runs its road through a man's yard, where his children have the right to play, unrestrained, it ought to take all reasonable precautions to guard against injuring such children with its dangerous and destructive machinery. (See Railroad Co. vs. Stout, 17 Wall. 657; Britton vs. Great Western, etc. Co., L. R., 7 Exch. 130; S. C., 1 Eng. Rep., 381; Kay vs. Penn. Railw. Co., 65 Penn. St., 269; Lynch vs. Nurdin, 1 Q. B., 29; Bellefontaine R. R. Co. vs. Snyder, 18 Ohio St. 399; Railw. Co. vs. Bohn, 12 Am. Law Reg., 759, note.)

II. If defendant's employees, in charge of the train, by the exercise of ordinary skill and caution, could have observed the child upon the track, and recognized him as an infant, in time to stop the train before it ran over him, the company are liable, even though the guardian of the child may have been negligent in permitting it to wander upon the railroad track. ( Cincinnati, etc. Rail. Co. vs. Smith, 22 Ohio St. 227; Richmond vs. Sacramento Rail. Co., 18 Cal. 351; Railroad Co. vs. Gladmon, 15 Wall. 401; O'Flaherty vs. Railroad Co., 45 Mo. 70; Boland & Wife vs. Mo. R. Co., 36 Mo. 484; Brown vs. Hann. & St. Jo. R. R. Co., 50 Mo. 461; Morrisey vs. The Wiggins Ferry Co., 43 Mo. 380; B. & O. R. R. Co. vs. Dougherty, 36 Md. 366; Bemis vs. Conn. etc. Rail. Co., 42 Vt. 375; Walsh vs. Miss. Trans. Co., 52 Mo. 434, Lynch vs. Nurdin, 1 Ad. & El. [[[N. S.], 28; Karle vs. K. C., etc., R. R. Co., supra; Berge vs. Gardiner, 19 Conn. 507; Bronson vs. Southbury, 37 Conn. 199; City vs. Kirby, 8 Minn. 169; Robinson vs. Cone, 22 Vt. 213; Whirley vs. Whiteman, 1 Head. 620; O'Flaherty vs. Union R. R. Co., 45 Mo. 70; Railroad Co. vs. Stout, 17 Wall. 657.)

The employees, in charge of a train, must use ordinary care and prudence to see and save even trespassing animals. ( Rockford, etc. Rail. Co. vs. Lewis, 58 Ill. 49; Cincinnati etc. Rail. Co. vs. Smith., 22 Ohio St...

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