Dahlstrom v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 18 June 1888 |
| Citation | 8 S.W. 777,96 Mo. 99 |
| Parties | Dahlstrom v. St. Louis, Iron Mountain & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.
Reversed and remanded.
Bennett Pike for appellant.
(1) The motion in arrest of judgment should have been sustained, as the petition does not state facts sufficient to constitute a cause of action. Stewart v. Railroad, 14 A. & E. R R. Cas. 679; Bell v. Railroad, 72 Mo. 50; Cooley on Torts, 606. (2) The demurrer to the evidence should have been sustained. Bell v. Railroad, 72 Mo. 50; Harlow v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Mahn v. Railroad, 64 Mo. 267; Goeton v. Railroad, 45 N.Y. 662; Shearm. & Redf. Negl. sec 488; Pierce Am. Rail. Law, 273; Stillson v. Railroad, 67 Mo. 671. (3) The instructions given for plaintiff were erroneous and improper. 1 Wharton on Neg., sec. 420; Bell v. Railroad, 72 Mo. 50; Zimmerman v. Railroad, 71 Mo. 477; Karle v. Railroad, 55 Mo. 476; Harlan v. Railroad, 64 Mo. 480; Galell v. Railroad, 60 Mo. 475; Harlan v. Railroad, 65 Mo. 22; Nelson v. Railroad, 68 Mo. 593; Cagney v. Railroad, 69 Mo. 416.
Pattison & Crane for respondent.
(1) The first proposition as to negligence laid down by the court below is correct. Johnson v. Railroad, 77 Mo. 548, 553; Hicks v. Railroad, 64 Mo. 439, 440. It is the duty of the railroad company to have a proper regard for human life in running through towns and populous neighborhoods, and at places on the road where, by the forbearance and tacit consent of the company, persons are in the habit of passing over or along the road, even where there are no public crossings. Maher v. Railroad, 64 Mo. 276; Frick v. Railroad, 75 Mo. 609. If the bell had been rung, as required by section 806 of the Revised Statutes, it would have been heard by plaintiff before the car struck him. For there is no pretense that the place where he crossed was more than fifty to a hundred feet south of the avenue. Frick v. Railroad, 75 Mo. 601, 609; Sonier v. Railroad, 141 Mass. 10; Petty v. Railroad, 88 Mo. 319. (2) Even if it had been conclusively shown that this was not a public crossing, nor a place where the public were accustomed to cross, nor on a public highway, still defendant was liable, and the law is as laid down in the second instruction. Though it be admitted that plaintiff was wrongfully there, yet the second proposition is correct. For an injury negligently inflicted, defendant may be held liable, though the plaintiff be a trespasser. Huelsenkamp v. Railroad, 37 Mo. 549, et seq., followed in Brown v. Railroad, 50 Mo. 468; Morrissey v. Ferry Co., 43 Mo. 382-383; Railroad v. Lewis, 79 Pa. St. 44-45; Daley v. Railroad, 26 Conn. 595-596; Railroad v. Pointer, 14 Kans. 49; Railroad v. Ryan, 70 Ill. 211. (3) Not only was there sufficient evidence of defendant's negligence to go to the jury, but the evidence establishes such negligence beyond a reasonable doubt. The case comes within that of Kennayde v. Railroad, 45 Mo. 361. (4) The petition is sufficient.
This is an action to recover damages for personal injuries alleged to have been occasioned by the negligent and careless management of defendant's engine and cars, in which plaintiff had judgment, from which defendant has appealed.
It is alleged in the petition that plaintiff, "while in the act of crossing Main street near Chouteau avenue in the city of St. Louis, was run over and injured by defendant's engine and cars, through or on account of defendant negligently and carelessly managing said engine and cars, both by running at a greater rate of speed than was justifiable, by not having an employe on the ends of the train to warn pedestrians and keep a lookout, by not giving any warning of the approach of said engine and cars by sounding a bell or whistle or otherwise, by obstructing the regular crossing for a great length of time, thereby compelling pedestrians to walk through and among moving and standing trains, and by not providing adequate means for the safe passage of pedestrians across a necessary and dangerous crossing."
Plaintiff is the only witness who testified in regard to the way in which he was injured, and his evidence is to the following effect: That on the day he was injured he was going down Chouteau avenue to the levee, and that when he came to Main street where it crosses said avenue, the way was blocked with cars standing across it; that he turned south and went about one hundred yards down Main street and discovering an opening between the cars, twenty feet wide as stated in his examination in chief and fifty feet wide as stated in his cross-examination, he undertook to cross Main street through said opening, and was struck and injured while doing so; that he kept a lookout but heard no noise before he was struck and run over.
There is nothing whatever in his evidence tending to show that the opening through which he attempted to go, was either made by defendant for pedestrians to pass through, or that it was or ever had been used by pedestrians for that purpose, and in so using it plaintiff was a trespasser on defendant's track, and defendant owed him no duty except not to injure him, if, after discovering his peril it could, by the exercise of ordinary care, have avoided injuring him, or could, by the exercise of ordinary care, have discovered his peril in time to have avoided injuring him. It is held in the case of Stillson v. Railroad, 67 Mo. 671, that where a street crossing is obstructed by a train of cars and there is an opening in the train at a place some distance from the crossing a...
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