Morgan v. Wabash R. Co.

• Decision Date: 18 December 1900
• Citation: 159 Mo. 262,60 S.W. 195
• Parties: MORGAN v. WABASH R. CO.
• Court: Missouri Supreme Court

60 S.W. 195

159 Mo. 262

MORGAN v. WABASH R. CO.

Supreme Court of Missouri.

December 18, 1900.

RAILROADS — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — DEMURRER TO EVIDENCE — OVERRULING — TRESPASSER — STATUTES AS TO CONSTRUCTION — APPEAL AND ERROR — INSTRUCTIONS — HARMLESS ERROR.

1. Plaintiff's husband, in full possession of all his senses, was walking on defendant's track, when he was struck and killed by an engine, tender, and caboose approaching from behind him without giving a warning whistle. The engine had been to a town a short distance from the accident, and, because of no turntable at the town, was obliged to run backward, and was pushing the tender ahead of it and drawing the caboose at the rate of about 25 miles an hour. The engineer and fireman could not see the track, or any one on it, because of coal piled on the tender, while the rest of the trainmen were in the caboose, so that none of them saw deceased before the accident. There was a clear view of the track for a considerable distance, so that, had deceased looked behind him, he could have seen the approaching engine, which was a special, and not running on schedule. The track was fenced, and ran along a public highway leading to the town, but for over 25 years it had been used constantly and by every one as a footpath from the town to a tie yard near a road crossing, to which deceased was going, and, for the convenience of those so using the track, steps had been erected over the railroad fence in the town and near the crossing. Held proper to overrule defendant's demurrer to the evidence, since, as the trainmen should have known that some one was likely to be on the track, plaintiff had a right to go to the jury on the hypothesis that the trainmen were negligent in failing to use the means at hand to prevent the injury, since by the exercise of ordinary care they would have discovered the peril to deceased.

2. Rev. St. 1889, § 2611, providing that if any person not connected with or employed on the railroad shall walk on the track, except where the track is laid along a publicly traveled road, and be injured thereby, he shall be deemed a trespasser, in any action brought therefor, does not destroy plaintiff's right to recover, since such statute only means that under such circumstances the walking on the track is to be considered negligence per se, and will defeat a recovery in a case where contributory negligence would defeat it, but it does not relieve the company from all duty of exercising care towards a trespasser.

3. It was harmless error to submit to the jury the question as to the conduct of defendant's servants after they became aware of the peril of the deceased, there being no evidence tending to show that they saw him at all.

4. It was harmless error to charge that it was the duty of the men in charge of the train to have stopped it, if they could have done so by the exercise of ordinary care, after seeing deceased, since, as there was no pretense that any one on the train saw deceased, the trainmen having placed themselves where they could not see the track, the jury could not have been misled thereby.

Marshall and Sherwood, JJ., dissent.

In banc. Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Action by Mary C. Morgan against the Wabash Railroad Company for the death of her husband. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The following is the opinion in division No. 1:

"VALLIANT, J. Plaintiff's husband was run over and killed by a train on defendant's road near Wright City, in Warren county, April 9, 1897, and this suit is to recover the damages allowed by the statute in such case when the killing is the result of defendant's negligence. The petition stated: That plaintiff's husband was walking eastward on the railroad track about a quarter of a mile east of Wright City, where the track was level and straight for a long distance, and which for many years pedestrians to and from that town had been accustomed to use as a road and footpath by the forbearance and tacit consent of the defendant. That the killing of plaintiff's husband was the direct result of the negligent, careless, and reckless manner in which the train was run, in this: `That after defendant's employés in charge of and operating said train seeing, or by the exercise of reasonable care and diligence, had they not been reckless in operating said train, could have seen, the dangerous position in which plaintiff's deceased husband, Caleb M. Morgan, was situated, and seeing, or by the exercise of reasonable care and diligence, if said train had not been recklessly operated by defendant's agents and servants in charge thereof, could have seen, the imminent peril in which her said husband was placed, and that the deceased was unaware of the near and dangerous approach of said train, negligently failed to sound the usual and ordinary signal in time to avert the injury herein complained of, and in fact did not at any time before the injury to and death of her said husband either ring the bell, sound the whistle, or give any other signal by which her said husband might be warned of the near and dangerous approach of said train, and negligently failed and neglected to use the brakes or other appliances provided for stopping said train made up as aforesaid, and negligently failed to use the appliances provided and at hand for putting said train under control and stopping the same before it struck and killed her husband, but, on the contrary thereof, recklessly, negligently, willfully, and wantonly ran its said train against the plaintiff's said husband, so mutilating, wounding, and bruising him that from the effects thereof he then and there immediately died.' The answer admitted that defendant was a railroad corporation, etc., and that plaintiff's husband was killed by one of its trains at the time and place named, denied all other allegations of the petition, and averred that his death was due solely to his own negligence, in then and there walking on the track without looking or listening, when by so doing he could have heard the train in time. Reply, general denial. Briefly stated, the material facts brought out at the trial were as follows: Wright City is a village of about 450 inhabitants. The country immediately around it is thickly settled. There is a curve in the railroad track just east of the depot, which obstructs the view; but after passing around it the track is straight and the view is clear for a distance of 1,300 feet, down to the Kennedy crossing, where the accident occurred, and so on to the Stringtown road crossing, a quarter of a mile or so further east. It is about half a mile from the depot to the Kennedy crossing. The Kennedy crossing is a private farm crossing. The Stringtown road is a county road crossing the railroad. Near the Stringtown road crossing is a tie yard, where for eight or ten years a considerable number of men engaged in that business have delivered ties to the railroad. Wright City is the usual trading point for these tie men, and they usually walk on the railroad track in passing between the tie yard and the town. The railroad track at this point is fenced as the law requires, and there is a public road running parallel to the railroad on the south side, though it varies in distance from the railroad, being 200 yards from it at the Kennedy crossing. For twenty-five years or more the railroad track from Wright City to Stringtown road crossing had been constantly used by the town people and people residing in the neighborhood — men, women, and children — as a footpath, in preference to the county road; and steps had been constructed over the railroad fence in the town, and also near the Stringtown road crossing, for the convenience of pedestrians going upon the track. Morgan, the plaintiff's husband, was a farmer living about five miles northeast of Wright City, and engaged, also, in the tie business, and was accustomed to pass to and from Wright City and the Stringtown road by walking along the railroad track. On the day of the accident he was walking on the track, going east towards the Stringtown road crossing, when he was struck and killed by a train going in the same direction. He was sixty-three years old; his senses of hearing and seeing unimpaired; but apparently did not hear the train; did not look around nor see it until it struck him. There was no one but the train crew on the train, — engineer, fireman, brakeman, and conductor, — neither of whom saw Morgan, and they did not know that an accident occurred until they were afterwards informed of it. It had been a train carrying seventeen empty freight cars, which came from the east to Wright City. There it left the freight cars, and the train, then reduced to engine, tender, and caboose, was returning east. It was a special train, not running on schedule time. There being no turntable at Wright City, the engine had to run backward on its return, pushing the tender in front, and drawing the caboose after it. The conductor and brakeman were in the caboose, from which they had no view of the track. The tender was wider than the engine, and was so loaded with coal as to prevent the engineer and fireman from seeing the track ahead of them, and they did not see Morgan at all, either before or after the accident, or know that an accident had occurred. The train was running at the time about twenty-five miles an hour. It was down grade, and could not have been stopped in less space than 500 feet. Before leaving the depot at Wright City the engineer whistled off brakes, by giving two blasts of the whistle. There was an automatic appliance for ringing the bell, and the engineer, who was called by plaintiff as a witness, testified that he set it ringing when he pulled out from the depot, and did not stop it until the train had passed the Stringtown road crossing. The other witnesses for plaintiff testified that the bell was not...