Tanner v. Missouri Pacific Railroad Company

• Decision Date: 29 March 1901
• Citation: 61 S.W. 826,161 Mo. 497
• Parties: TANNER v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

61 S.W. 826

161 Mo. 497

TANNER v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

March 29, 1901

Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.

Reversed.

M. L Clardy and William S. Shirk for appellant.

The court erred in refusing to sustain defendant's demurrer to plaintiff's evidence, offered at the close of plaintiff's case: First. Plaintiff was not upon defendant's depot grounds for the purpose of transacting any business with it. He was there as a runner for a hotel solely in his master s private business. He was there in defiance of the rules, regulations and orders of the defendant, and was therefore a trespasser, and defendant was not bound to be on the lookout for him. Post v Railroad, 23 S.W. 708; Elliott on Railways, sec. 1252, p. 1957, et seq; sec. 1256, p. 1966; sec. 200, n. 6, p. 285; Hall v. Power, 12 Metc. 482; Landrigan v. State, 31 Ark. 50. Second. This case does not belong to that class of cases, where persons are on the tracks by license, or invitation of a railroad company, as in Scoville v. Railroad, 81 Mo. 434, and the Frick and Kelly cases in 75 Mo. There never was any acquiescence on the part of the railway company, in the use of this place by the hotel porters, and the evidence in this case shows that defendant's employees had no knowledge or notice, that hotel porters were in the habit of standing where plaintiff was injured. Hence, the defendant was only liable, if they actually saw the plaintiff in a perilous situation, and then failed to do all they could to avoid injuring him. And there is no evidence to this effect, whatever. Williams v. Railroad, 96 Mo. 275; Rine v. Railroad, 100 Mo. 228; Hyde v. Railroad, 110 Mo. 272; Barker v. Railroad, 98 Mo. 53, 54. Third. His own evidence plainly showed that he was guilty of gross contributory negligence. Relying upon some statement which he heard made, that numbers nine and ten were both marked on the bulletin board, "on time," and that therefore number ten would not be in for about seven minutes, he walked across the track upon which he knew number ten would come in, and stood on the track or very close to it, for a minute and a half, or two minutes, until struck by the engine of number ten. During these two minutes he stood with his back towards the west, from which direction number ten was coming, with his umbrella raised over his head, and amidst the noise made by hackmen and porters, and neither looked or listened to see or hear if number ten was approaching him. He admits that "if he had looked he must have seen, and if he had listened he must have heard." "He directly contributes to his own injury, who, paying no attention to his own safety, trusts to the obligation imposed upon the company to warn him of an approaching train." Turner v. Railroad, 74 Mo. 607; Bogg v. Railroad, 138 Mo. 172; Stepp v. Railroad, 85 Mo. 229; Henze v. Railroad, 71 Mo. 562; Elliott on Railways, sec. 1166 and note, p. 1776; Beach Contrib. Neg., sec. 37 and notes; sec. 181 and notes; Kries v. Railroad, 148 Mo. 321. Fourth. And the fact, if true, that defendant's servants running the engine, did not ring the bell, was no excuse for this negligence on plaintiff's part. Kries v. Railroad, 148 Mo. 321; Corcoran v. Railroad, 105 Mo. 399; Dlauhi v. Railroad, 105 Mo. 645; Caldwell v. Railroad, 58 Mo.App. 453; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Baker v. Railroad, 122 Mo. 533.

J. H. Rodes, Sangree & Lamm and Barnett & Barnett for respondent.

The demurrer to the evidence was properly refused. The respondent was not on the railroad's private property but upon a street crossing, where Osage street crosses the railroad tracks and leads up to the depot. The railroad company recognized this as a public crossing, and the right of the public to use it, as such, by putting in walks between and across tracks for the use of the public in crossing, in going to and from the depot and the trains, and the public, including plaintiff, had the right to go upon this crossing, and the railroad company (even if it attempted to do so) had no right to exclude plaintiff from this crossing, and therefore plaintiff was not a trespasser in being there. The crossing is designed for the use of the public, and the right of the railroad to use its tracks is no greater than the right of the plaintiff to use the crossing extending across the tracks to the depot. Baker v. Railroad, 147 Mo. 140; Nixon v. Railroad, 141 Mo. 425; Hanlon v. Railroad, 104 Mo. 381; Dlauhi v. Railroad, 105 Mo. 645; Burger v. Railroad, 112 Mo. 238; Schmitz v. Railroad, 119 Mo. 256. (a) Even though this crossing was not a public crossing, but private railroad property, still, the plaintiff would not be a trespasser in being where he was when struck, because the public were licensed to and did use this place as a crossing. The public constantly crossed and recrossed there, many hundreds every day, and porters and hackmen stood at this place and plied their trade there with the full knowledge and without objection on the part of the defendant. Hence, the public generally being licensed to be at this place, plaintiff was not a trespasser. Williams v. Railroad, 96 Mo. 275; Guenther v. Railroad, 108 Mo. 18; Le May v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Easley v. Railroad, 113 Mo. 236. (b) Plaintiff went to the trains on proper and legitimate business; that is, to meet and attend to the wants of passengers alighting from said train, but if he had no business there, and if the place where he stood is to be regarded not as the street crossing but a part of defendant's platform, still, plaintiff was not a trespasser and the company is bound to exercise ordinary care to prevent injury to him. Hicks v. Railroad, 64 Mo. 430. One is not a trespasser who has been accustomed to go upon the company's property with its tacit permission. Guenther v. Railroad, 108 Mo. 18; Le May v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601. (c) But, assuming that the company had the right to prevent hotel runners from plying their vocation at this place, that is, on the crossing south of the trains, yet there is not a particle of evidence that the company ever objected to plaintiff or other hotel runners plying their vocation at this place, although the company's officers had knowledge of the custom to solicit guests for hotels on the south side of the tracks. (d) Assuming, in the face of all the evidence to the contrary, that defendant had a right to a clear track, yet the injury occurred at a place where, by reason of the usual presence of people there, it did not have a right to anticipate a clear track. Therefore, the employees of said train were bound to be on the lookout for persons at this point, and if they discovered, or by the exercise of care could have discovered, plaintiff's peril in time to have avoided the injury, then the defendant is liable, and for this reason the demurrer should have been refused. Williams v. Railroad, 96 Mo. 275; Fiedler v. Railroad, 107 Mo. 645; Frick v. Railroad, 75 Mo. 595; Dlauhi v. Railroad, 139 Mo. 291; Baird v. Railroad, 146 Mo. 265; Hilz v. Railroad, 101 Mo. 36; Guenther v. Railroad, 95 Mo. 286. (e) The law requires that the greatest diligence, watchfulness and care be observed by those running and operating trains in towns and cities, especially over streets and other public places therein. Burger v. Railroad, 112 Mo. 238; Brown v. Railroad, 50 Mo. 461; Powell v. Railroad, 59 Mo.App. 626. And when running at an unusual time of night, as in this case, unusually great precautions should be observed, and the care required must be commensurate with the danger. Karle v. Railroad, 55 Mo. 476; Frick v. Railroad, 75 Mo. 595. (f) The demurrer to the evidence should not have been sustained on the ground of contributory negligence, because even if plaintiff was guilty of negligence in being where he was, yet if defendant's servants could have discovered his peril in time to have avoided the injury, then the defendant is liable, notwithstanding plaintiff's contributory negligence, and it was the duty of the court to submit this question to the jury. Dlauhi v. Railroad, 139 Mo. 291; Baird v. Railroad, 146 Mo. 265; Williams v. Railroad, 96 Mo. 275; Fiedler v. Railroad, 107 Mo. 645; Frick v. Railroad, 75 Mo. 595. (g) But it was a question of fact for the jury to say under all the circumstances detailed in evidence whether plaintiff was guilty of contributory negligence. For any one and all of the foregoing reasons, the court did right in refusing to give the instruction in the nature of a demurrer to the evidence.

BRACE P. J. Marshall, J., absent.

OPINION

BRACE, P. J.

This is an appeal by the defendant from a judgment of the circuit court of Pettis county in favor of the plaintiff for the sum of seven thousand dollars, for personal injuries, which, it is alleged in the petition, was caused by the negligence of the plaintiff in running its train at a rate of speed in excess of that allowed by city ordinance and without ringing its bell. The answer was a general denial, and a plea of contributory negligence. At the close of plaintiff's evidence, the defendant demurred thereto, and at the close of all the evidence renewed its demurrer, and now insists that the trial court committed error in not sustaining the demurrer. This contention makes it necessary to determine the undisputed facts in the case, and if upon them, it is well grounded, the necessity of considering the other errors assigned is obviated.

The accident occurred on the second day of March, 1897, between one and two o'clock a. m. on the grounds of the defendant in front of its depot in the city of Sedalia. The depot fronts south, with a wooden platform...