Ayers v. Wabash Railroad Co.

Citation88 S.W. 608,190 Mo. 228
PartiesAYERS, Appellant, v. WABASH RAILROAD COMPANY
Decision Date15 June 1905
CourtUnited States State Supreme Court of Missouri

Appeal from Carroll Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

John T Barker and Conkling & Rea for appellant.

(1) Notwithstanding appellant was a trespasser and guilty of contributory negligence, the railroad company is still liable for the injury, if it saw, or by the exercise of ordinary care could have seen, the dangerous position he was in, in time to have averted the calamity. The law is well settled in this State that the party who has the last fair opportunity of avoiding the accident is not excused by the negligence of any one else. Fearons v. Railroad, 180 Mo. 208; Scullin v. Railroad, 83 S.W. 760; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 587; Reardon v. Railroad, 114 Mo. 384; Guenther v Railroad, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; Werner v. Railroad, 81 Mo. 368; Inland Co. v. Tolson, 139 U.S. 557; Railroad v. Ives, 144 U.S. 408; Meyers v. Railroad, 99 Mo.App. 363; McAndrew v. Railroad, 88 Mo.App. 97; Deans v Railroad, 107 N.C. 686. (2) The Gates Crossing, and the railroad track of defendant from this crossing on into LaPlata, having been used for more than fifteen years by the entire public as a footpath, and having been used to a considerable extent by the public in riding bicycles over and along the track and driving stock thereon, defendant's employees should have taken notice of such practices and might have reasonably anticipated that persons would be on the track at this point. It was, therefore, their duty to keep a careful lookout in order to discover such persons and prevent injuring them. If they failed to do so, and if the injury to Ayers resulted from such failure, then plaintiff was entitled to recover. Fearons v. Railroad, 180 Mo. 208; Scullin v. Railroad, 83 S.W. 760; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 587; Kries v. Railroad, 131 Mo. 533; Guenther v. Railroad, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Powell v. Railroad, 59 Mo.App. 626; Garner v. Trumbull, 94 F. 321; Cahill v. Railroad, 74 F. 288; Ashworth v. Railroad, 116 Ga. 635; Bullard v. Railroad, 116 Ga. 655; Arrowood v. Railroad, 126 N.C. 629; Fleming v. Railroad, 106 Tenn. 374; Railroad v. Crosnoe, 72 Tex. 79; Railroad v. White, 84 Va. 498; Corbett v. Railroad (Utah), 71 P. 1065; Mason v. Railroad, 89 Wis. 151; Barry v. Railroad, 92 N.Y. 289; Railroad v. Wymore (Neb.), 58 N.W. 1120; Shearman & Redfield on Negligence, sec. 493. (3) It was a question for the jury to say whether such use of this track was of such long standing and of such a nature and extent, as to impose on the employees of defendant, on approaching this point, the duty of anticipating the probable presence of persons on the track. Garner v. Trumbull, 94 F. 321; Railroad v. Lowell, 151 U.S. 209; Hansen v. Railroad, 105 Cal. 379; Taylor v. Canal Co., 113 Pa. 162; Railroad v. Rogers, 100 Va. 324; Troy v. Railroad, 99 N.C. 298. (4) It appears from the evidence of defendant's engineer that he was looking up the track toward this crossing, continuously, from a distance of one-third of a mile south thereof, and as plaintiff was on the track at this point, and there were no obstructions of any kind from this point south to the approaching train, then the jury might reasonably have said that defendant's engineer actually saw plaintiff for a sufficient distance within which to have stopped his train. And as plaintiff was sitting on the track, the presumption that he would leave the track did not apply. (5) The following authorities show that we were not bound by the naked statement of the engineer, but were entitled to have the jury say, from all the facts and circumstances in evidence, whether or not plaintiff could have been discovered sooner. And especially so when we proved by numerous witnesses that plaintiff could have been seen in this position for at least 2,000 feet: Campbell v. Railroad, 175 Mo. 161; State ex rel. v. Branch, 151 Mo. 642; Imhoff & Co. v. McArthur, 146 Mo. 371; Gannon v. Gas Company, 145 Mo. 502; Spurgin Gro. Co. v. Frick, 73 Mo.App. 128. (6) While plaintiff placed defendant's engineer upon the stand, he was only questioned as to the train's being equipped with modern appliances, and the evidence regarding the distance within which plaintiff could have been seen was brought out by defendant on cross-examination. This being true, the witness was defendant's witness as to the new matter brought out. Anderson v. Railroad, 161 Mo. 411; State ex rel. v. Branch, 151 Mo. 641; Hume v. Hopkins, 140 Mo. 65.

Geo. S. Grover for respondent.

(1) Upon the undisputed facts in this case, it was the plain and absolute duty of the judge below to direct, as he did, a verdict in the defendant's favor. Zumault v. Railroads, 175 Mo. 288. (2) The cross-examination of the engineer is plaintiff's evidence, and the engineer is plaintiff's witness. This is the rule adopted by this court: Page v. Kankey, 6 Mo. 433; Railroad v. Silver, 56 Mo. 265; State v. Jones, 64 Mo. 391; State v. Soper, 148 Mo. 234. And the rule of the United States Supreme Court: Railroad v. Stimpson, 14 Pet. 448.

VALLIANT, J. Brace, C. J., concurs. Marshall and Lamm, JJ., concur in the result.

OPINION

VALLIANT, J.

Plaintiff was struck by a locomotive on defendant's railroad and suffered personal injuries; he brings this suit for damages. The negligence ascribed to the defendant in the petition is failure to sound the bell or whistle on approaching the point where plaintiff was, and failure of the engineer to use the appliances at hand to stop the train in time to avoid striking the plaintiff after seeing him in a position of peril or after the engineer by ordinary care might have seen him. The petition states that defendant's track was and had been for many years a well-recognized public path for pedestrians, with the knowledge and consent of defendant, and that plaintiff was on the track when he was struck, but it omits to say what he was doing or in what position he was. The answer was a general denial and contributory negligence.

The evidence for the plaintiff tended to prove as follows:

Defendant's railroad runs north and south through the town of LaPlata. There is a well-beaten foot-path in the track, and for many years the people in that vicinity, men, women and children, habitually used the path in going to and from the town. About a mile south of LaPlata there is a private crossing over the railroad, called Gate's crossing. From that point, looking south, the track for a half mile or more is level and straight, with nothing to obstruct the view. In the afternoon of a clear day, January 8, 1902, the plaintiff had been to town, became intoxicated and started home walking in the foot-path in the track, going south. When he got as far as Gate's Crossing he sat down on the west end of a cross tie and then and there all consciousness ceased and his memory of events ended.

A regular north-bound passenger train, running about forty miles an hour, came along and struck him, inflicting serious injuries. As the engine approached Gate's Crossing there was no signal given by bell or whistle; the train ran a quarter of a mile past the crossing before it stopped, then backed and took the plaintiff on. Gate's Crossing was constructed by cross-ties laid lengthwise the track, with plank on the ties. The plaintiff was sitting on the west end of a cross-tie a few feet north of the crossing.

Sinnock, the only witness for the plaintiff near this crossing at the time of the accident, testified that he was approaching the track from the east, and when he got within about thirty-five yards of the crossing he saw the train coming from the south and waited for it to pass; he did not see the plaintiff until after the accident.

There was evidence tending to show that this train running at the rate of thirty, thirty-five or forty miles an hour, as some of the witnesses thought it was, could have been stopped within three hundred or four hundred feet.

The plaintiff called as a witness the engineer who was operating the locomotive at the time of the accident, and interrogated him on two subjects, that is, asked him how the engine was equipped and what kind of a day it was; then the witness was turned over to the attorney for the defendant for cross-examination, and was examined in regard to the accident, in which examination he stated that when at his post on a level-straight track he could see from a half to three-quarters of a mile ahead, that this track was level and straight for about a quarter of a mile south of Gate's Crossing, that on this occasion he was at his post on the east side of the cab, looking north, he was running a little over forty miles an hour, at that speed the train could not be stopped shorter than within six hundred or seven hundred feet, that he did not see the plaintiff until he was within one hundred and fifty feet of him, the plaintiff was then lying on the west side of the west rail, his body showing about five or six inches above the rail, as soon as he saw him he used every effort and means at hand to stop, but it was too late, it was then impossible to stop in time to prevent striking him, the position of the plaintiff on the track was such that the witness could not have discerned him sooner than he did.

At the close of the plaintiff's evidence the court, at the request of defendant, gave an instruction to the jury to find for the defendant; the jury rendered a verdict accordingly and the judgment for defendant followed. The plaintiff has appealed.

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