Williams v. Kansas City, Springfield & Memphis Railroad Co.

Citation9 S.W. 573,96 Mo. 275
PartiesWilliams et al. v. Kansas City, Springfield & Memphis Railroad Company, Appellant
Decision Date12 November 1888
CourtUnited States State Supreme Court of Missouri

Appeal from Howell Circuit Court. -- Hon. J. B. Woodside, Judge.

Reversed.

Wallace Pratt and C. B. McAfee for appellant.

(1) The deceased was a trespasser, or was at least where he had no right to be, and there is no evidence that any agent, servant or employe of defendant saw the boy at all or knew that he was in any danger. Halligan v. Railroad, 71 Mo. 113; Henry v. Railroad, 76 Mo. 288; McAlister v Railroad, 19 A. & E. R. R. Cas. 108; Schlefflin v Railroad, 19 A. & E. R. R. Cas. 173; Duff v. Railroad, 2 A. & E. R. R. Cas. 1; Cauley v. Railroad, 2 A. & E. R. R Cas. 4; Railroad v. Holmes, 5 Col. 197; Railroad v. Depew, 12 A. & E. R. R. Cas. 64; Railroad v. Richards, 12 A. & E. R. R. Cas. 70; Railroad v. Graham, 12 A. & E. R. R. Cas. 77; Bell v. Railroad, 86 Mo. 599; Rine v. Railroad, 88 Mo. 392. (2) The deceased was guilty of negligence directly contributing to his injury. Parnell v. Railroad, 76 Mo. 80; Lennix v. Railroad, 76 Mo. 86; Turner v. Railroad, 74 Mo. 602; Henze v. Railroad, 71 Mo. 636; Zimmerman v. Railroad, 71 Mo. 476; Stetson v. Railroad, 67 Mo. 670. (3) The conduct of plaintiffs' attorney in telling the jury that the instructions given on part of the defendant were only given to prevent a reversal, and would not have been given as the law if plaintiffs had objected to them, was improper, and the court erred in not correcting and rebuking when called on to do so by defendant. Ritter v. Bank, 87 Mo. 574. (4) The court erred in not submitting the special issues prayed for by defendant. Acts 1885, p. 214. (5) The court erred in giving the first two instructions for plaintiffs. There was no evidence upon which to base the first, and the second is not the law. The damages should have been five thousand dollars or nothing. R. S., sec. 2121; Procter v. Railroad, 64 Mo. 122; Rafferty v. Railroad, 15 Mo.App. 559.

W. N. Evans and Livingston & Pitts for respondents.

The trial court did not err in overruling the demurrer to the evidence. The plaintiffs' evidence established a clear case of negligence. But when there is any evidence, however slight, tending to establish the allegations of the petition, the court cannot withdraw the case from the jury. Williamson v. Fiecher, 50 Mo. 198; Cook v. Railroad, 63 Mo. 397; Kelly v. Railroad, 70 Mo. 604; Walsh v. Morse, 80 Mo. 568.

Black, J. Ray, J., absent; Norton, C. J., and Sherwood, J., concur in the result; Brace, J., concurs.

OPINION

Black, J.

The plaintiffs, who are husband and wife, brought this suit to recover damages for the death of their son, who was run over by defendant's cars and killed at the town of Augusta, also called Thayer. Plaintiffs kept a boarding-house in the town about one hundred yards from the depot. The boy was intelligent, twelve years of age, and had been raised on and near railroads. A train of eight or ten box-cars in front, loaded with ties, and several empty cars in the rear, came in from the south. Suter, the switch engineer, took the train up opposite the freight depot. The flat-cars were then cut loose and left standing on the main track, and he ran the box-cars north a half or a quarter of a mile, intending to place them on a side track, but before the rear car passed the north end of the switch he heard a passenger train coming from the north. He reversed his engine, signaled the passenger train to come forward, and ran his train back and put the flat and box-cars on the switch at the south end. As the box-cars hit the flat-cars, one of the latter ran over the boy.

The petition alleges that the boy was killed at a crossing and at a point opposite the freight depot, but the evidence shows that he was run over three or four hundred feet north of the street, which crosses the track, and at a point opposite the freight depot, where there is no crossing at all. Hazen, a witness for plaintiffs, testified that he got on top of one of the box-cars before they were run up to the depot; that he rode up to the north end of the switch, and that when the cars started back on the main track the brakeman ran along on the ground and signaled Suter to stop; that the brakeman then climbed up on one of the cars and again signaled Suter to stop when within three hundred feet of the flat-cars, but Suter did not stop or check up. Hazen says he was nearer the flat-cars than the brakeman and that he did not see the boy. Several of the witnesses were at and near the freight depot and they all say they did not see the boy on the car or track. One witness says the boy was on the flat-cars when they were going up to the depot, but this witness did not see the boy at that place. It seems the boy said, after he was hurt, that he was sitting on a brake, at the time of the accident. The witness Hazen, who was on the box-car, to pass away the time as he expresses it, says there was danger from both ways and that he jumped off, when within one hundred feet of the flat-cars, without being hurt; that Suter shut off steam before he struck the flat-cars. He and other witnesses testified that the box-cars struck the flat-cars "at an unusual rate of speed"; "it was a harder jam than usual"; "cars seemed to bow up where coupled."

Hazen says the jam broke the engine loose from the box-cars. The proof is that the bell was ringing all the while, and the witnesses who testify as to rate of speed, with one exception, place it at six to eight miles per hour. Other evidence is to the effect that the jam was not of unusual force, and that the cars were not injured by it. There is evidence that Suter was often about saloons and drank considerably, but there is no proof that he was intoxicated at the time of the accident, and the only witness that speaks of his competency, says he was regarded as a careful engineer. There is evidence that plaintiffs got water for their boarding-house from a spring, to reach which they had to cross these tracks, but there is no evidence that the boy was on any such an errand. He was three or four hundred feet north of the crossing by which the spring was reached.

The most important question in this case is, whether the defendant's instruction, asked at the close of the case, in the nature of a demurrer to the evidence, should have been given. This question will, however, be considered in the light of the second instruction given at the request of plaintiffs, which is as follows:

"2. That although the jury may believe from the evidence that the deceased, Charles Williams, was guilty of negligence by being on or about defendant's track or cars at or near its depot, yet if they further believe from the evidence that his death could have been prevented by the exercise of reasonable care on the part of defendant's servants and employes after discovery of danger in which the said Charles Williams stood; or if defendant's servants and employes failed to discover the danger in which said Charles Williams was at the time, through their recklessness and carelessness, when the exercise of ordinary care would have discovered his danger and averted the calamity, then the defendant is liable and the jury should find for the plaintiffs."

It must be kept in mind throughout this case, that the boy, at the time of the accident, was on a car or the track in the defendant's switch-yard, and that too without invitation or right. In short he was a trespasser. The principles of law which are to be applied in cases of this kind are not to be confounded with those which are applied where the party is on the car or track by right; nor with those which regulate the duties of railroad corporations at public crossings, or where the company has violated some statutory or municipal regulation.

It has been held in a number of cases, where the party injured or killed was wrongfully on a railroad track, was a trespasser, that in order to make the defendant liable it must appear that the proximate cause of the injury was the omission of the defendant to use reasonable care to avoid the injury, after becoming aware of the danger to which the injured party was exposed. Isabell v. Railroad, 60 Mo. 475; Harlan v. Railroad, 64 Mo. 480; Zimmerman v. Railroad, 71 Mo. 476; Yarnell v. Railroad, 75 Mo. 575; Maher v. Railroad, 64 Mo. 267. Whilst the evidence shows that the brakeman, when on the ground at the north end of the switch, and when on top of the car, signaled the engineer to stop, yet it is clear he gave the signal, not because he saw the boy on the car or track, but because he supposed the box-cars were to be placed on the side track and not run back on the main track. There is indeed nothing to show that either he or the engineer saw or knew that the boy was on or about the flat-cars. Not a witness saw the boy on the car at the time of the accident, though some of them were in a more favorable position to see him than the brakeman. There is no evidence upon which to base a liability on the ground that the defendant's servants saw or knew of the danger to which the boy was exposed, and for this reason the plaintiffs' second instruction should not have been given. Indeed the third instruction, given at the request of the defendant, told the jury that there was no evidence that defendant's servants saw or knew that he was on the car or track.

But it is necessary to examine the other branch of the plaintiffs' second instruction. The general rule of the authorities before cited implies that the engineer is not bound to foresee the wrongful presence of persons upon the track or cars. The rule, however, as before stated, will, in some cases, require a modification. It was said in case of Harlan v....

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2 cases
  • Hall v. Missouri Pacific Railway Company
    • United States
    • Missouri Supreme Court
    • 13 Abril 1909
    ...v. Railroad, 133 Mo. 587; Morgan v. Railroad, 159 Mo. 274; LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Williams v. Railroad, 96 Mo. 275; Houck v. Railroad, 116 Mo.App. 572. Defendant, therefore, had an unfair advantage of plaintiff at the trial in this respect. One to wh......
  • Erwin v. St. Louis, Iron Mountain & Southern Railway Co.
    • United States
    • Missouri Supreme Court
    • 12 Noviembre 1888
    ...track; but the principle has no application to a case like this. Rine v. Railroad, 88 Mo. 392; Keim v. Railroad, 90 Mo. 314; Williams v. Railroad, ante, p. 275. Here both company and the public have a right to the use of the street. The company must know that persons will be, and have a rig......

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