66 S.W. 965 (Mo. 1902), Feeback v. Missouri Pacific Railway Company

Citation:66 S.W. 965, 167 Mo. 206
Opinion Judge:VALLIANT, J.
Party Name:FEEBACK, Plaintiff In Error, v. MISSOURI PACIFIC RAILWAY COMPANY
Attorney:Geo. Bird and James T. Burney for plaintiff in error. R. T. Railey for defendant in error.
Case Date:February 19, 1902
Court:Supreme Court of Missouri
 
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Page 965

66 S.W. 965 (Mo. 1902)

167 Mo. 206

FEEBACK, Plaintiff In Error,

v.

MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Missouri, First Division

February 19, 1902

          Error to Cass Circuit Court. -- Hon. W. W. Wood, Judge.

          Affirmed.

         Geo. Bird and James T. Burney for plaintiff in error.

         (1) Although deceased was a trespasser on defendant's train and was guilty of negligence in riding thereon in violation of the company's rules, yet such negligence was not contributory, and will not preclude a recovery in this case, because it was not the proximate cause of the injury. 7 Am. and Eng. Ency. Law (2 Ed.), 401; Kelly v. Railroad, 95 Mo. 279. (2) Plaintiff is entitled to recover in this action because the employees of defendant, on its south bound train, could, by the exercise of ordinary care, have known of the danger of a collision with the north bound train on which the deceased was riding in time to have averted the injury, and failed to make such discovery in time solely because of recklessness and carelessness on their part. Harlan v. Railroad, 65 Mo. 22; Scoville v. Railroad, 81 Mo. 434; Frick v. Railroad, 75 Mo. 595; Rine v. Railroad, 88 Mo. 392; Kelly v. Railroad, 95 Mo. 279; Williams v. Railroad, 96 Mo. 280; Morgan v. Railroad, 60 S.W. 195; Lynch v. Railroad, 111 Mo. 609; Kellny v. Railroad, 101 Mo. 73; Donohue v. Railroad, 91 Mo. 357. (3) The conduct of defendant's employees on its southbound train was reckless and criminal negligence, equivalent in law to intentional injury. Under these circumstances defendant will not be heard to excuse itself on the ground of deceased's contributory negligence. Kellny v. Railroad, 101 Mo. 73; Roddy v. Railroad, 104 Mo. 246; Morgan v. Railroad, supra; Shear. and Red. on Neg. (5 Ed.), sec. 64; Crossman v. City of Lynn, 121 Mass. 301; Railroad v. Hankerson, 61 Ga. 114; Kenyon v. Railroad, 5 Hun (N. Y.), 479; Railroad v. Whipple, 39 Kan. 531; Railroad v. Brice, 84 Ky. 298; Railroad v. Gastineau, 83 Ky. 119; Railroad v. Webster, 25 Fla. 394; Railroad v. Hirst, 30 Fla. 1; Palmer v. Railroad, 112 Ind. 250; Railroad v. Wheeler, 115 Ind. 253; Brannen v. Railroad, 115 Ind. 115; Railroad v. Bills, 118 Ind. 221; Railroad v. Cooper, 6 L. R. A. 241; Shumacher v. Railroad, 39 F. 174; Sellick v. Railroad, 92 Mich. 375, 18 L. R. A. 154; Beach on Contributory Neg., sec. 62; 2 Sutherland on Damages, p. 435. (4) The court erred in refusing to allow the evidence offered by plaintiff to the effect that persons were in the habit of riding without objection on the freight trains of defendant mentioned in evidence, regardless of the rules of the company. (5) The engineer of defendant in charge of its southbound train was guilty of such culpable negligence as amounted to a felony, defined by statute as manslaughter in the third degree. R. S. 1899, sec. 1832; R. S. 1889, sec. 3475.

         R. T. Railey for defendant in error.

         (1) It is conceded that deceased was a trespasser secreted on the train without defendant's knowing that he was there. Under these circumstances, the law is well settled that defendant owed deceased no duty whatever at the time and place of the accident. Hallihan v. Railroad, 71 Mo. 117; Henry v. Railroad, 76 Mo. 295; Williams v. Railroad, 96 Mo. 282; Barker v. Railroad, 98 Mo. 54; Berry v. Railroad, 124 Mo. 300; Barney v. Railroad, 126 Mo. 388; Loring v. Railroad, 128 Mo. 360. Being a trespasser, the company owed him no duty, except not to wantonly, willfully or with gross negligence injure him. The company was not in duty bound to look out for him. Maher v. Railroad, 64 Mo. 267; Hallihan v. Railroad, 71 Mo. 114; Maloy v. Railroad, 84 Mo. 270; Rine v. Railroad, 88 Mo. 392; Williams v. Railroad, 96 Mo. 275; Langan v. Railroad, 72 Mo. 394; Comly v. Railroad, 12 A. 496. (2) In the country, outside of highways, and especially where the track is fenced, the railroad company is entitled to a clear track. It is not required to be on the lookout for trespassers, under such circumstances. Maher v. Railroad, 64 Mo. 276; Yarnell v. Railroad, 75 Mo. 579; Donahoe v. Railroad, 83 Mo. 554; Maloy v. Railroad, 84 Mo. 274; Barker v. Railroad, 98 Mo. 53; Shaw v. Railroad, 104 Mo. 656; Sinclair v. Railroad, 133 Mo. 240; Coatney v. Railroad, 151 Mo. 49; Mirrielees v. Railroad, 63 S.W. 722. The rule of law is well settled by the foregoing authorities, that unless a trespasser upon or near the track is actually seen in peril, by defendants' servants in charge of the train, in time to avoid injury thereafter, by the exercise of ordinary care, he can not recover under any circumstances, regardless of his own contributory negligence. (3) The law is likewise well settled in this State, that where the railway crosses a street or highway, the citizen and the railway company, when desiring to use said crossing, shall each exercise ordinary care in looking out for the other, under such circumstances. A duty devolves upon the railway company as well as the citizen, under the circumstances aforesaid, to be vigilant in looking out for danger. Harlan v. Railroad, 64 Mo. 483; Harlan v. Railroad, 65 Mo. 22; Purl v. Railroad, 72 Mo. 168; Kelly v. Railroad, 75 Mo. 140; Donohue v. Railroad, 91 Mo. 366; Boyd v. Railroad, 105 Mo. 371; Dlauhi v. Railroad, 105 Mo. 648; Watson v. Railroad, 133 Mo. 246; Culbertson v. Railroad, 140 Mo. 64; Peterson v. Railroad, 156 Mo. 555; Holwerson v. Railroad, 157 Mo. 223; Davies v. Railroad, 159 Mo. 6. (4) Some of the authorities in this State hold, that where a railroad runs through cities and towns, where its track is unfenced, and where men, women and children are constantly passing and repassing over its track, from a humanitarian standpoint of view, the railway company has no right to assume that its track is clear, and to run its trains accordingly. Bell v. Railroad, 72 Mo. 58; Frick v. Railroad, 75 Mo. 600; Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80; Scoville v. Railroad, 81 Mo. 439; Rine v. Railroad, 88 Mo. 398; Yancey v. Railroad, 93 Mo. 433; Williams v. Railroad, 96 Mo. 277; Kellny v. Railroad, 101 Mo. 73; Fiedler v. Railroad, 107 Mo. 645; Hyde v. Railroad, 110 Mo. 272; Maxey v. Railroad, 113 Mo. 1; Rearden v. Railroad, 114 Mo. 405; Spillane v. Railroad, 135 Mo. 414; Vogg v. Railroad, 138 Mo. 176; Tanner v. Railroad, 161 Mo. 497. (5) In cities, towns and populous districts, where the railway company has permitted the public to use its track extensively for years, as though it were a highway, it has been asserted by some of the Missouri cases in respect to defendant's negligence, that the servants of the railway company have no right to rely on a clear track, under all circumstances, but under the conditions aforesaid must exercise ordinary care towards those people thus permitted to use said track. Frick v. Railroad, 75 Mo. 609; Williams v. Railroad, 96 Mo. 279; LeMay v. Railroad, 105 Mo. 370; Lynch v. Railroad, 111 Mo. 609; Maxey v. Railroad, 133 Mo. 1; Chamberlin v. Railroad, 113 Mo. 587; Morgan v. Railroad, 159 Mo. 276. It is unnecessary to discuss the question as to whether the foregoing principle of law is sound or otherwise, for the obvious reason that it affords no remedy to this plaintiff in any aspect of the case. (6) In this class of cases, where the servant is at work along the line of road, it is his duty to be on the lookout for trains. Under such circumstances, the defendant is only liable for injuring him, after he is actually discovered to be in peril. Kelly v. Railroad, 95 Mo. 282; Schlereth v. Railroad, 115 Mo. 100; Loring v. Railroad, 128 Mo. 360; Sharp v. Railroad, 161 Mo. 214. (7) It stands admitted that deceased was a trespasser on defendant's train, which did...

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