Eppstein v. Missouri Pac. Ry. Co.

• Decision Date: 01 June 1906
• Citation: 94 S.W. 967,197 Mo. 720
• Parties: EPPSTEIN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

94 S.W. 967

197 Mo. 720

EPPSTEIN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 1, 1906.

1. APPEAL — REVIEW — FAILURE TO PRESENT QUESTION ON TRIAL—ADMISSION OF EVIDENCE.

The admission of evidence will not be reviewed on appeal, where no exception was saved thereto.

2. RAILROADS — INJURIES TO PERSONS ON TRACK—CONTRIBUTORY NEGLIGENCE.

One standing on a railroad track and absorbed in watching the passing of a train on another track was negligent.

3. SAME—ACTION—QUESTION FOR JURY.

In an action for the death of one run over by a railroad train while walking on the track, held a question for the jury whether the operatives of the locomotive had reason to expect the presence of persons on the track at that point.

4. SAME—EVIDENCE—ADMISSIBILITY.

On an issue as to whether the operatives of railroad trains are charged with notice that persons may be upon the track at a certain place, such notice may be proved by the existence of paths, by gaps, stiles, and gates appurtenant to the path, by the long-continued going to and fro of people, more or less constantly, and the use of the tracks by pedestrians.

5. SAME—CUSTOMARY USE OF TRACK.

The operatives of a railroad train are bound to use ordinary care to prevent injuring a person on the track at a place where they had reason to anticipate the presence of people on the track.

6. SAME—EVIDENCE—SUFFICIENCY.

In an action against a railroad for the death of one run over while walking on the track, it appeared that the place of the accident was within the limits of a city, that no bell was rung as required by ordinance, that at the time of the accident decedent was standing with his back turned to the approaching train watching a train passing on a parallel track, and that he could have been seen for 300 yards by the train operatives. Held, that the operatives of the train failed to exercise ordinary care.

7. TRIAL—INSTRUCTIONS.

The court having instructed that if defendant's servants either failed to observe decedent upon the track, or failed to give the proper signals, or take such other action as a prudent man would have done to avoid the injury, the verdict should be for plaintiff, held, that the instruction was not subject to the criticism that it ignored the existence of concurrent negligence on the part of decedent.

8. SAME—ARGUMENT OF COUNSEL—CORRECTION OF ERROR.

Where counsel for plaintiff, in arguing to the jury, stated that it was the duty of the court to give a demurrer to the evidence, if plaintiff had no case, and that in not doing so he had decided that the plaintiff had a case, the remark should have been withdrawn, and the trial court should have promptly corrected the error by a ruling and a cautionary reproof.

9. APPEAL—FAILURE TO PRESENT QUESTION— MOTION FOR NEW TRIAL—ARGUMENT OF COUNSEL.

Where no exception was saved to erroneous argument to the jury, and it was not made a ground of a motion for a new trial, it could not be complained of on appeal.

In Banc. Appeal from Circuit Court, Cooper County; Jas. E. Hazell, Judge.

Action by Fannie Eppstein against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Martin L. Clardy and John Cashman, for appellant. W. G. & G. T. Pendleton and W. M. Williams, for respondent.

LAMM, J.

This is a suit by the widow of Veit Eppstein to recover statutory damages for the death of her said husband through the alleged negligence of defendant railway company. To reverse a judgment in her favor, defendant appeals.

The petition counts on the following grounds of recovery: First. That Mr. Eppstein was killed on defendant's track in the city of Boonville, where at the time there was an ordinance in force providing that no engine or car should be run at a greater rate of speed than five miles per hour, and that the bell of each locomotive should be rung continuously while such engine is passing through the city; one of the complaints being that defendant negligently violated this ordinance and by such violation caused his death. Second (to borrow the language of the petition). "Plaintiff * * * states: That on the 7th day of March, 1902, the plaintiff's said husband, Veit Eppstein, was walking southward on the track of said defendant's railway about one-half mile south of the defendant's station in said city of Boonville, and within the limits of said city, and where the track was level and straight for a long distance, and which for many years pedestrians had been accustomed to use as a road and footpath by the forbearance and tacit consent of the defendant. That at the time and place aforesaid, and while deceased was so walking on defendant's said railway track, he was run against and struck by a locomotive attached to a train of cars, belonging to the defendant, and which approached him from the rear, whilst the same was being run, conducted, and managed by the agents and servants of the defendant, and by reason of being so struck and run against was bruised and wounded and from the effects thereof died. That the injury resulted (sic) in the death of plaintiff's said husband as aforesaid, was occasioned by the negligence and unskillfulness of the defendant's said servants and agents in operating said locomotive and train of cars in this, to wit: That said servants and agents saw, or by the exercise of reasonable diligence could have seen, in time to avert said injury, the dangerous position in which plaintiff's deceased husband was situated, and seeing, or being by the exercise of reasonable care and diligence enabled to see, the imminent peril in which her said husband was placed, and that the deceased was unaware of the near and dangerous approach of said locomotive and train of cars, negligently failed to sound the usual and ordinary signal in time to avert the said injury, and did not, at any time before the injury to her said husband, either ring the bell, sound the whistle, or give any other signal by which her said husband might be warned of the near and dangerous approach of said locomotive and train of cars, and negligently and carelessly failed to use the air brakes or other appliances provided for stopping said train, and negligently failed to use the appliances provided and at hand for putting said train under control and stopping same before it struck her said husband, but, on the contrary thereof, recklessly, negligently, willfully, and wantonly ran its said locomotive and train against the plaintiff's said husband, as aforesaid." The answer pleads the general issue, contributory negligence, and that Eppstein was a trespasser. The reply put in issue the new matter in defendant's answer.

At a jury trial defendant, introducing no evidence, stood on plaintiff's case. Its demurrer to plaintiff's evidence being overruled, it saved an exception. Objections were made and exceptions saved to the giving of certain instructions for plaintiff and to the refusal of certain instructions asked by defendant. Contentions are pressed here by appellant relating to the giving and refusal of instructions and relating to certain remarks made arguendo by counsel for respondent to the jury. But no error relating to the admission of evidence is assigned in appellant's brief. One such suggestion is made in appellant's statement, whereby the deposition of one Isenberg is challenged. Of this suggestion it may be said that it is true the introduction of this testimony was objected to, but no exception was saved to the ruling of the court nisi, and hence the matter is apparently abandoned as a ground of reversal.

Appellant's main insistence is that there was reversible error in refusing to give its instruction in the nature of a demurrer to the evidence, and this insistence seeks the facts. Attending, then, to the facts, the case made is this: Mr. Eppstein was upwards of 74 years of age. His eyesight was good, such, for example, as might be inferred from the fact that, while he wore glasses to read, he could see the time shown by his watch without putting them on. He was as active as an average man of 50. In full daylight, between 8 and 10 o'clock of the morning of March 7, 1902, a day described by one witness as a cold, winter day, Mr. Eppstein was walking south within the city limits of Boonville, and midway between the rails of a straight portion of appellant's track leading from Boonville to Tipton. There is an upgrade there to the south. He had about his neck and shoulders a shawl he was accustomed to wear, though there is no evidence it muffled his ears or in anywise interfered with his hearing, and the quality of his hearing was such that his family had no need to repeat questions or observations in order to elicit his attention or make him understand. In short, his hearing may be conceded prime for one of his years. At that precise time there was approaching him in the rear, running south at from 8 to 10 miles an hour, a light passenger train of appellant, consisting of two coaches, a baggage car, tender, and locomotive. Whether this train was running on a regular scheduled time, or whether off time, does not appear. Neither does it appear whether Mr. Eppstein knew of the scheduled time, if any. In this condition of things and under these circumstances, without ringing its bell or giving any other warning, the locomotive ran him down and inflicted mortal wounds upon his skull, legs, and body, so crushing him as to render him unconscious, from the resulting shock of which wounds and consequent waste of blood he presently died without regaining his senses. That he was seen by appellant's train crew is inferable from the fact that the train stopped quickly—so quickly that the rear coach did not pass his body, and thereupon they took him on board and backed half a mile or so to appellant's station. But there is no evidence they saw him before they ran him down, other than might be inferred from the fact that he was in their plain eyesight for say...