Thompson v. Missouri, Kansas & Texas Railway Company
| Decision Date | 07 April 1902 |
| Citation | 67 S.W. 693,93 Mo.App. 548 |
| Parties | COLUMBUS THOMPSON, by His Curator, etc., Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. Jno. A. Hockaday, Judge.
REVERSED AND REMANDED.
N. T Gentry for appellant.
(1) The court erred in refusing to give plaintiff's instruction No. 2; it is an exact copy of one that has been approved by our Supreme Court in case of Brown v. Railroad, 50 Mo. 461; White v. Railroad, 34 Mo.App. 78. (2) Plaintiff's instruction No. 5 should also have been given. Although the trainmen did not know of the dangerous position of plaintiff, yet if they could have known it or discovered it by the exercise of ordinary care, the defendant is liable. Gass v. Railroad, 57 Mo.App. 580; Davis v. Railroad, 46 Mo.App. 180; White v Railroad, supra. (3) Defendant's instruction No. 2 does away entirely with the humanity rule which has been so long recognized in this State. Even if plaintiff was negligently and wrongfully upon defendant's track, defendant's servants owed him the duty to avoid injuring him; especially after his position of danger was discovered. Isabel v Railroad, 60 Mo. 475; Morgan v. Railroad, 60 S.W. 195; McAndrew v. Railroad, 88 Mo.App. 97. (4) Defendant's instructions Nos. 3 and 5 were wrong in that they were a comment upon and gave undue prominence to defendant's evidence. McFadin v. Catron, 120 Mo 274; Railroad v. Stock Yards, 120 Mo. 565; Benjamin v. Railroad, 50 Mo.App. 611; 2 Thomp. on Trials, sec. 2330; Gannon v. Gas Co., 145 Mo. 502. (5) Defendant's fourth instruction was erroneous in that it admits the negligent act charged in plaintiff's petition, to-wit, obstructing the public crossing for an indefinite time, and then tells the jury that the plaintiff can not recover if he climbed between or over said train at a point other than the crossing. Brown v. Railroad, 50 Mo. 461. (6) Defendant's instructions Nos. 6 and 7 are clearly erroneous, as the whole case is by these instructions submitted to the jury on the question of plaintiff's mental capacity. Anderson v. Railroad, 81 Mo.App. 119; Burger v. Railroad, 112 Mo. 238; Jennings v. Schwab, 64 Mo.App. 13; Costello v. Railroad, 65 Barb. 92; Railroad v. Becker, 84 Ill. 483; Elkins v. Railroad, 115 Mass. 190; Railroad v. Mackey, 41 N.E. 980 (O.) ; Anderson v. Railroad, 161 Mo. 411; Riley v. Railroad, 68 Mo.App. 652; Railroad v. Valinius, 56 Ind. 511; Beach on Cont. Negl. (3 Ed.), sec. 204; Bertram v. Railroad, 154 Mo. 654; Stone v. Hunt, 94 Mo. 475; Shoe Co. v. Hilig, 70 Mo.App. 310; Gannon v. Gas Co., supra; Burger v. Railroad, 112 Mo. 238. (7) Defendant's instruction No. 13, does not go far enough. Buswell on Per. Inj. (2 Ed.), 218; Railroad v. Colman, 8 S.W. 875.
Geo. P. B. Jackson for respondent.
(1) The court did not err in refusing plaintiff's instruction No. 2. (2) The plaintiff's fifth instruction was properly refused. The trainmen were not required to anticipate the presence of plaintiff between the cars, and owed him no duty until they knew he was there. Williams v. Railroad, 96 Mo. 280; Corcoran v. Railroad, 105 Mo. 399. (3) There is no merit in the objection to defendant's third and fifth instructions. They did not single out any facts, and did not comment on any evidence. Appellant's counsel simply does not understand them. (4) Defendant's fourth instruction is not erroneous. Stillson v. Railroad, 67 Mo. 671; Gurley v. Railroad, 104 Mo. 211; Schmitz v. Railroad, 46 Mo.App. 380. (5) There was no error in giving defendant's sixth and seventh instructions. Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad, 105 Mo. 399; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 135 Mo. 414; Payne v. Railroad, 136 Mo. 562; Schmitt v. Railroad, 160 Mo. 43. (6) The complaint against defendant's eighth instruction is groundless. Stillson v. Railroad, 67 Mo. 671; Bell v. Railroad, 72 Mo. 50; Dahlstrom v. Railroad, 96 Mo. 99; Gurley v. Railroad, 104 Mo. 211. (7) Nor was there any error committed in giving defendant's instructions Nos. 9 and 13, both of which asserted the same proposition of law, making it essential to a recovery by plaintiff that there should have been a failure to give any signal before the moving of the train on which plaintiff was hurt. Stillson v. Railroad, 67 Mo. 671; Gurley v. Railroad, 104 Mo. 211; Corcoran v. Railroad. 105 Mo. 399.
This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. The petition alleged that there was a public street in the town of McBaine known as Perche avenue, and that defendant had two or more tracks which crossed said street; that at the time of the injury complained of one of its freight trains negligently obstructed said street crossing; that while the plaintiff, a minor, was attempting to pass between the cars of said train, the defendant's employees in charge thereof negligently caused it to suddenly move back, preparatory to starting forward, without ringing the bell or sounding the whistle, or giving any signal whatever of an intention to start, in consequence of all which plaintiff's right foot was caught between the couplings or drawheads and injured. The defendant had judgment and plaintiff appealed.
I. The errors assigned for a reversal relate entirely to the action of the trial court in the giving and refusing of the instructions to the jury. The first requested and given for the plaintiff submitted the case upon the theory of the petition. The plaintiff was not content with this, and so requested others, which were refused: one of which, the fifth, was to the effect that even if the plaintiff was guilty of negligence in going on the defendant's track where it crosses a public street at the time of his injury, yet if the defendant's servants in charge of said train saw or by the exercise of ordinary care could have seen plaintiff in time to have averted the injury, then the verdict should be for plaintiff notwithstanding his negligence. The action of the court in refusing this instruction raises the question whether or not the law cast upon the defendant's employees, in charge of the train, the duty to look between the cars of the train before attempting to move it, to the end that they might discover whether any one was in such a place or situation as that his safety would be rendered perilous by the movement of the train; and this, too, without reference to whether or not they--the employees--might have anticipated the presence of any person at such place or discovered him while engaged in the discharge of the duties to which they were assigned upon the train.
The law is well settled, in this State at least, that in those places where the railway employees operating a train have reason to anticipate the presence of persons--as, for example, where a train approaches the crossing of a public street or other public thoroughfare, or is moved over and along a public street in a populous city or town, and the like--it is their duty to be on the alert, so as, if possible, to discover any one whose situation is imperiled by the movement of the train. And in such places where it is their duty to be on the lookout, if an injury occurs which could have been averted had they exercised ordinary care in looking out, then there is liability. White v. Railroad, 34 Mo.App. 57, and cases there cited; Zumault v. Railroad, 71 Mo.App. 670; Chamberlain v. Railroad, 133 Mo. 587; Morgan v. Railroad, 159 Mo. 262. It is thus seen that the rule is limited in the scope of its application and can not be invoked in those cases where neither the locus in quo itself, nor any fact or circumstances connected with it, or the train, are such as to admonish the trainmen that they might anticipate the presence of persons in a situation of danger with respect to the movement of the train. And so it must result that where a railway has the right to anticipate a clear track, there can be no reason for liability to one wrongfully thereon on the ground that he might have been seen by the exercise of ordinary care. In such case the law imposes no duty to be on the lookout for him. Williams v. Railroad, 96 Mo. 275; Corcoran v. Railroad, 105 Mo. 399.
The plaintiff's evidence tends to prove that the train in question extended from the watertank east across said street, and that while it was standing there the plaintiff attempted to pass between the cars occupying the street-crossing. There was no evidence tending to prove that any of the train-men were aware of the presence of the plaintiff at the time he attempted to pass between the cars. The defendant's trainmen had no reason to anticipate the presence of the plaintiff between the cars at the time the train was started. It is conceded to have been negligence for any one to have attempted, under the circumstances, to pass between the cars standing on the crossing, and the defendant's trainmen had no reason to anticipate such negligence on the part of the plaintiff at the time they started the train. They were not bound to look for plaintiff where he had no right to be. Rine v. Railroad, 88 Mo. 392; Barker v. Railroad, 98 Mo. 50; Hudson v. Railroad, 101 Mo. 13, 14 S.W. 15.
Of course, there would have been liability if the proximate cause of the injury had been the omission of the defendant to use reasonable care to avoid such injury after becoming aware of the danger to which the plaintiff was exposed (Isabel v. Railroad, 60 Mo. 475; Harlan v. Railroad, 64 Mo. 480; Zimmerman v. Railroad, 71 Mo. 476; Yarnall v. Railroad, 75 Mo. 575) but as there is no claim made of liability under this rule, nothing further need be said in respect to it. The said instruction, therefore, in so...
To continue reading
Request your trial