Rine v. Chicago & Alton R.R. Co.

Citation88 Mo. 392
PartiesRINE v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.
Decision Date31 October 1885
CourtUnited States State Supreme Court of Missouri

Appeal from Lafayette Circuit Court.--HON. JOHN P. STROTHER, Judge.

REVERSED.

Macfarlane & Trimble for appellant.

(1) The third paragraph in defendant's answer should not have been stricken out. ( a) The statute makes the defence a complete bar to an action for negligence. R. S., sec. 809. ( b) It was new matter constituting a defence, and under the code is required to be set up in the answer. R. S., sec. 3521. ( c) Contributory negligence is a defence which has to be pleaded. Bliss on Pleading, sec. 200; Thompson v. Railroad, 51 Mo. 192; Loyd v. Railroad, 53 Mo. 513. ( d) This defence is similar to contributory negligence, but different from it. Defendant owed no duty to deceased, if a trespasser, except not to wilfully or wantonly injure him. 1 Thompson on Negligence; Railroad v. Graham, 12 Am. and Eng. Ry. Cases, 77; Railroad v. Goldsmith, 47 Ind. 43; Ry. v. Collins, 87 Pa. St. 366; Wright v. Railroad, 129 Mass; 2 Am. and Eng. Ry. Cases, 121 and note; see also authorities cited under appellant's third point. (2) The first instruction given the jury at the request of plaintiff wholly ignored the defence of contributory negligence, and authorized a recovery on proof of negligence on defendant's part alone. This was error. Johnson v. Railroad, 77 Mo. 553; Nugent v. Curran, 77 Mo. 327; Henry v. Bassett, 75 Mo. 92; Modisett v. McPike, 74 Mo. 648; Thomas v. Babb, 45 Mo. 384; Henschen v. O'Bannon, 56 Mo. 289; Sullivan v. H. & St. Jo. R. R.,ante, p. 299. (3) Defendant did not owe deceased, who was a trespasser on its track, the duty of watchfulness or care. Unless defendant's acts, which resulted in the death, were wilful, it cannot be held liable therefor. Defendant cannot be held liable for the negligence of its employes in failing to see that deceased had walked on to the side track. Unless they knew he was there their acts were not wilful. Defendant's instructions, numbers one to three, should have been given as asked and should not have been amended. Adams v. Railroad, 74 Mo. 554; Yarnall v. Railroad, 75 Mo. 576; Zimmerman v. Railroad, 71 Mo. 478; Isbel v. Railroad, 60 Mo. 475; Maher v. Railroad, 64 Mo. 276; Karle v. Railroad, 55 Mo. 484; Morrisy v. Wig. Ferry Co., 43 Mo. 380; Straus v. Railroad, 75 Mo. 191; Henry v. Railroad, 76 Mo. 295; Hallihan v. Railroad, 71 Mo. 116; Railroad v.Hart, 87 Ill. 529; Lavemez v. Railroad, 56 Iowa, 689; Railroad v.Hall, 72 Ill. 222; Railroad v. Depew [Ohio] 12 A. & E. Ry. Cases, 64; Railroad v. Cooper, 12 A. & E. Ry. Cases [Ky.] 5. (4) Defendant's second, fourth and sixth instructions should have been given. They fairly presented the question of contributory negligence. Powell v. Railroad, 76 Mo. 81; Lenix v. Railroad, 76 Mo. 86; 2 Thompson on Negligence, 1157; Sullivan v. Railroad,ante, p 299; Bell v. Railroad, 72 Mo. 51. It is a presumption that an adult person will leave the track and get out of danger when he sees an approaching train. Railroad v. Cooper, [Ky.] 6 A. & E. Ry. Cases, 5, and authorities cited in note on p. 18; Railroad v. Graham, 12 A. & E. Ry. Cases [[[[[[Ind.] 77; Railroad v. McLaren, 8 Cent. L. J. 244; O'Donnell v. Railroad, 7 Mo. App. 190. (5) Defendant's third instruction refused should have been given. If deceased knew the engine was approaching him there was no need of the signals. Holman v. Railroad, 62 Mo. 257; Henry v. Railroad, 76 Mo. 295; Zimmerman v. Railroad, 71 Mo. 476; Purl v. Railroad, 72 Mo. 169; Bell v. Railroad, 72 Mo. 58. (6) The jury should have been instructed under the pleadings and all the evidence to find for defendant. ( a) Those in charge of the engine had a right to presume that when deceased looked back and saw the engine approaching, he would get out of the way of danger, and it was not negligence on their part to give him no further attention. Railroad v. Cooper, 12 A. & E. Ry. Cases [Ky.] 5; see note p. 18; Ry. v. Graham, 12 A. & E. Ry. Cases [Ind.] 77; Ry. v. McClaren, 8 Cen. L. J. 244; Kelley v. Ry., 75 Mo. 138; O'Donnell v. Ry., 7 Mo. App. 190. ( b) It was gross negligence on the part of deceased when he saw the engine approaching to step onto another track without knowing upon which track the engine would run. Hallihan v. Ry., 71 Mo. 116; see authorities cited supra; Zimmerman v. Ry., 71 Mo. 477; Henry v. Ry., 76 Mo. 288; Harlan v. Ry., 64 Mo. 481; Harlan v. Ry., 65 Mo. 22. ( c) If it was negligence in the train men not to see deceased when he walked onto the side track, it was also negligence on the part of deceased to go onto the side track, and both being contemporaneously negligent the loss falls on plaintiff. 2 Thompson on Negligence, 1157; Kelly v. Ry., 75 Mo. 138; Straus v. Ry., 75 Mo. 191; Purl v. Ry., 72 Mo. 168; Adams v. Ry., 74 Mo. 553; Powell v. Ry., 76 Mo. 80; Bell v. Ry., 72 Mo. 50; Lenix v. Ry., 76 Mo. 90; Ry. v. Carrigan, 35 Mich. 468.

J. D. Shewalter for respondent.

(1) The agents of a railroad in charge of an engine, in running the same, are bound to exercise ordinary care, the degree of it being dependent on the place and circumstances. Kennayde v. Ry., 45 Mo. 260; Karle v. Ry., 55 Mo. 476; O'Flavery v. Ry., 45 Mo. 72; Kelly v. Ry., 75 Mo. 138. (2) If deceased was guilty of negligence there can be no recovery unless the defendant's agents knew or (as the necessary sequence of the first point) could have known by the exercise of ordinary care (regard being had to the place), the danger to which deceased had exposed himself in time to avert the accident with safety. Kelley v. Ry., 75 Mo. 138; Harlan v. Ry., 65 Mo. 25-26; Isbell v. Ry., 60 Mo. 481. If so, then the negligence of deceased ceases to be any excuse. Kelley v. Ry., 75 Mo. 140. (3) The record shows consent only of plaintiff for respondent to file its bill of exceptions in this case. This is insufficient. McCarty v. Cunningham, 75 Mo. 279; Spencer v. Ry., 79 Mo. 500. And there is nothing but the record proper for this court to examine. (4) The trial court did not err in striking out the first paragraph of the answer. The defendant was not authorized to kill the deceased because he was at the time of the injury a trespasser. The statute does not make the trespass a bar to the suit. (5) The first instruction for plaintiff is not defective in that it ignored the defence of contributory negligence, because the latter is in its nature a defence. (6) If the defendant's servants saw or knew the danger of the deceased after his negligence occurred in time to avert the accident, it is liable, and the servants were bound to use ordinary care, and this requires them to see and know what can be seen and known by the exercise of ordinary care. Kelly v. Ry., 75 Mo. 140; Frick v. Ry., 75 Mo. 612; Karl v. Ry., 55 Mo. 477.

BLACK, J.

The plaintiff sued for damages because of the death of her unmarried son, nineteen years of age. The petition states that defendant's servants negligently ran an engine and tender over him. The answer is, that whilst the engine and tender were being backed on and along the track, deceased negligently walked on the track and in front of the tender, because of which he was run over. The reply states, that notwithstanding deceased was on the track, the servants of defendant could and in fact did see him in ample time to have stopped the engine, but failed to do so. Plaintiff resided at Blackburn, a station on the road where she kept a hotel. She was accustomed to prepare lunch for the train men. The deceased was in the habit of going to Corder, another station west of Blackburn, two or three times a week to get meat for his mother's table. He would go on one freight train and return on another, and had become well acquainted with the train men. He often assisted them in loading and unloading freight, would set brakes, throw switches, and the evidence shows that he sometimes rode on the engine. On the occasion in question he rode on the freight train from Blackburn to Corder as usual. The road at the latter place runs east and west. The depot is on the north side of the track. South of the depot, besides the main track, are two side tracks; on the outside one, and nearly opposite the depot, is situated the freight warehouse. Lafayette street is four or five hundred feet west of the depot; crosses the railroad at right angles, and the open depot grounds appear to extend up to that street. Two switches and their targets are located between this street and the depot--the first sixty or seventy feet east of the street, and the second on the first side track, sixty or seventy feet still further east; from these switches the side tracks extend eastward beyond the depot and warehouse. The train in question stopped at the depot, and the evidence tends to show that young Rine assisted in unloading some freight; also that he heard the station agent inform the conductor that there was some machinery to be loaded at the warehouse; but this is controverted by other evidence. At all events, three cars with the engine were cut loose from the train, pulled west and then run on the outer side track to the warehouse.

While the machinery was being loaded into these cars the deceased went to a hotel on the street before named, and one hundred and fifty feet north of the main track, on his errand. In the meantime the engineer and fireman ran the engine and tender a quarter of a mile west to a coal shaft and took on coal. Rine left the hotel, passed along the street to the track, and thence along the same towards the depot. At the same time the engine and tender backed in from the coal shaft at the rate of eight or ten miles an hour. Between the first and second switches Rine was run over by the tender as it and the engine passed over the side track towards the warehouse. The witnesses all say that when he was at, or just passed, the first switch, he halted, looked towards the approaching engine; some say he stepped off the main track to the side...

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