Powell v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 80
• Parties: POWELL v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 80

POWELL

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

T. J. Portis and S. H. Priest for appellant.

Jno. F. Philips for respondent.

SHERWOOD, C. J.

The plaintiffs bring this action under the Damage Act, because of the death of their son, who was fatally injured by defendant's cars. We rest our decision upon the evidence introduced by the plaintiffs themselves in this cause, waiving all other questions, whatsoever, as being altogether immaterial.

That evidence in substance and in brief declares that the son was a lad between fifteen and sixteen years of age accustomed to go about the cars; to transact business there with the consent of his father, with whom he had been a great deal on the cars shipping stock, and who had often warned him for three or four years before the occurrence of the accident, of the dangers attendant on proximity to the cars, but who nevertheless permitted him to go about the town of Holden, and the streets and depot, anywhere, regarding him as competent to take care of himself; that the son, in consequence of the facts aforesaid, was acquainted with the arrival and departure of the trains; that on the fatal evening he went down to the train to get newspapers from the express car for Metzeler & Smith, in whose employ he then was by his father's permission; that a train of cars coming from the west, such as that by which the son was killed, could be seen approaching for a mile or more when the track was clear, and that the track had to be clear in order for the train from the west to come in on the main track, its customary one, and the one on which the accident occurred; that the east end of the switch was distant from the street crossing 200 yards or more; that the train in question, No. 4, was heard to approach, the impression of one witness being that it gave the customary signal, or station whistle, which was heard before he saw the train reach the west end of the switch, about a quarter of a mile distant; that the boy was not seen by one witness, who was within a few feet of where the accident occurred, and who watched the approaching train, when he first looked; that he looked in another direction for a very short space of time, standing in between the tracks, and then saw the boy whom he had not seen before, in between the middle and main tracks, a space of nine or ten feet, just at the instant he was struck by No. 4; that whether the boy was in motion could not be told; that the boy was seen by another witness on the street crossing, on the main track, looking toward the south, but a second before he was struck, having been left by his companion only a few moments before, standing in between the middle and main tracks, a place of perfect safety; that short, sharp danger whistles were heard just before the train causing the injury came in at the street crossing, and that the speed at which the train was running, was variously estimated at from six to eight and ten miles per hour.

Upon these facts thus briefly recited, the defendant asked an instruction to the effect that plaintiffs could not recover. We have no hesitation in saying such an instruction should have been given.

Much has been said about the rate of speed at which the train was run. Aside from statutory or municipal regulation, no rate of speed is negligent per se. Maher v. R. R. Co., 64 Mo. 267; Bell v. R. R. Co., 72 Mo. 50; Wallace v. R. R. Co., 74 Mo. 594.

But granting that the rate of speed was somewhat greater than customary, still there is nothing to show it to have been a reckless or wanton rate of speed, or granting so much as that, that there was any necessary connection between such a rate of speed and the injury inflicted. From all that can be gathered from the most liberal inferences from the facts in evidence, the son, in his forgetful and neglectful state, would as surely have been struck by a train moving at four miles an hour, as at the rate plaintiffs' witnesses claim it was moving. Making the broad concession for argument's sake, that the testimony tended to show the defendant was negligent, still, there was nothing to show that this, of necessity, caused the injury. On the contrary thereof, the only inference which can be fairly drawn from the testimony, is that but for the boy's neglect to act in a manner suitable to the situation in which he was placed--suitable to the dangerous machinery by which he was surrounded--that but for his heedlessness, not to say absolute rashness, in failing to look and listen for the train of whose expected arrival he was fully aware, the accident would not have occurred. That he could have seen the train if he had looked; that he could have heard it if he had listened, is abundantly established, and this case, in this, its most essential feature, resembles Bell's case, supra, as well as Purl's case, 72 Mo. 168, where views were taken of the evidence similar to those expressed in the present opinion.

And it is the duty of the trial court, the facts being undisputed, facts which show that, conceding defendant's negligence, yet that notwithstanding this the injury would not have occurred but for the contributory negligence of the party injured directly tending to produce that injury, to direct the jury to find for defendant. In a word, negligence and injury as its legitimate consequence,...