Frye v. St. Louis, Iron Mountain & Southern Railway Co.

• Citation: 98 S.W. 566,200 Mo. 377
• Parties: FRYE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Decision Date: 22 December 1906
• Court: United States State Supreme Court of Missouri

98 S.W. 566

200 Mo. 377

FRYE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division One

December 22, 1906

Appeal from Wayne Circuit Court. -- Hon. Frank R. Dearing, Judge.

Reversed.

Martin L. Clardy and James F. Green for appellant.

Upon the uncontradicted evidence plaintiff was not entitled to recover, and defendant's instruction so declaring should have been given. Sinclair v. Railroad, 133 Mo. 233; Rine v. Railroad, 88 Mo. 392; Carr v Railroad, 92 S.W. 877; Barker v. Railroad, 98 Mo. 50; Carrier v. Railroad, 175 Mo. 470; Hyde v. Railroad, 110 Mo. 272; Jackson v. Railroad, 157 Mo. 621; Kries v. Railroad, 148 Mo. 330.

V. V Ing, Almon Ing and M. R. Smith for respondent.

(1) The trial court did not commit error in refusing to give the two instructions asked by appellant in the nature of demurrers to the evidence. Dalton v. Poplar Bluff, 173 Mo. 79; Farrell v. Railroad, 103 Mo.App. 454; Scheutte v. Railroad, 108 Mo.App. 653; Herndon v. Lewis, 175 Mo. 116; Graham v. Railroad, 113 Mo. 408; Wood v. Railroad, 95 S.W. 946; Eppstein v Railroad, 94 S.W. 967. (2) Plaintiff was not a trespasser while walking on the railroad track at the time and place when and where struck and injured by defendant's engine. Morgan v. Railroad, 159 Mo. 262; Fearons v. Railroad, 180 Mo. 208; Scullin v. Railroad, 184 Mo. 705; Murrell v. Railroad, 105 Mo.App. 88; Hutchinson v. Railroad, 88 Mo.App. 376; Spencer v. Railroad, 90 Mo.App. 91; Andrew v. Railroad, 88 Mo.App. 97; Dieter v. Zbaren, 81 Mo.App. 612; O'Kief v. Railroad, 81 Mo.App. 386; Green v. Railroad, 192 Mo. 132; Payne v. Railroad, 105 Mo.App. 155; Rendick v. Hammond Pack. Co., 106 Mo.App. 717; Eppstein v. Railroad, 94 S.W. 967.

OPINION

LAMM, J.

George H. Frye sued defendant railway company in the circuit court of Wayne county for $ 20,000 damages for personal injuries. A jury awarded him $ 5,000, and, from a judgment entered on that verdict, defendant appeals.

At the close of plaintiff's evidence in chief, and again at the end of the case, defendant demurred, and its demurrer in each instance being disallowed, it saved exceptions.

As defendant did not stand on its demurrer at the close of plaintiff's case, but produced its own evidence, it must be held to have waived the first demurrer, and the open question on this behalf is on the court's disposition of the last demurrer -- the correctness of that ruling depending upon all the evidence.

Attending to the facts, on the part of plaintiff it was shown that he was thirty-five years old and, with his wife and two children, lived at Mill Springs, a little hamlet of two or three hundred people on the line of defendant's road in Wayne county. Say a mile and a quarter north of Mill Springs was another way-station, Leeper. Leeper was a village of four or five hundred souls and there seems to have been a rather extensive sawmill there, using hands in the mill and mill yards. At the time in hand, some eight or ten of these employees lived at Mill Springs, among them, plaintiff. Plaintiff had been employed a year or so as a roustabout in such yards. Defendant's road between said stations is a straight line, and the grade is a slight upgrade to the north. Parallel with this portion of defendant's track and adjacent to defendant's right of way is a public dirt road, also connecting Leeper and Mill Springs.

The wind before daylight on the morning of February 16, 1903, was blowing a gale from the north and the weather was freezing cold -- the petition alleging it was "very cold." From the description of the weather and the hour given by witnesses, we infer the night was uncommonly morose and bitter -- the darkness being such as indicated by the proverb: The darkest hour is that before dawn; and being deepened in this instance by heavy clouds. Moreover, there was a snow storm raging, accompanied by rain -- the snow and rain being driven with vehemence to the south by a north wind. Plaintiff's description of the night just before day is as follows: "The snow was falling and the wind was blowing; it was snow and rain mixed together and there was some snow on the ground. It was very cold weather, as we generally have here." At another place plaintiff testified it was "slick" and again was inquired of by his counsel as follows: "Q. You say it was snowing very heavy that morning?" To that inquiry he answered, "Tolerably heavy. Q. Wasn't it a very thick cloud? A. Yes, sir." At another place he says: "There was some snow and a mist of rain." A witness for plaintiff described the weather as follows: "Q. What kind of a morning was that? A. It was about as bad a morning as a person hardly ever sees. Q. Was it snowing? A. Yes, sir. Q. From what direction. A. From the north." Another witness, Captain Leeper, who impresses us as a very fair witness, testified the fury of the storm had not abated at 7 a. m.; that the snow was falling very fast that morning and the wind was blowing. He lived on the public road, before referred to, and about a half mile from Leeper. He took the railroad track at his home that morning at seven o'clock to go to the latter town and says he passed within thirty yards of where Mr. Frye must have been, and looked down that way, that is, to the south. He saw a man standing on the track, that is, could see his form but couldn't form any idea of who it was and we take it his inability to recognize that man (who seems to have been an acquaintance of his) and his failure to discover plaintiff was because of the blinding fury of the storm.

Plaintiff left his home that morning at about 5:30 a. m., dressed in two coats, crossed the public road aforesaid and, as usual, took defendant's main line track for Leeper, on foot, to be on hand at 6 a. m. at the opening of the mill for work. When he entered on defendant's track, he looked and listened for an approaching train. Seeing and hearing none, he faced to the north, crossed the cattleguard at the crossing there, and, breasting the storm, traveled between the rails for a quarter of a mile and then stopped and again looked and listened for a train. Still seeing and hearing none, he resumed his journey, neither stopping, listening nor turning his face again to look behind him, and, when about one-half of a mile from the crossing at Mill Springs and three-quarters of a mile of Leeper, he became conscious a train was coming on him from the rear. He heard no whistle or bell but heard what he described as a "humming noise," a "very small noise," a "little shake of the ground," and, so hearing, turned his head and found a locomotive engine on him. From that time on, he knew not a whit more, except that he was hit and thinks he was hit in the back. When daylight came he was found at about 7 o'clock hanging on the fence of the right-of-way, that is, standing and leaning over the right-of-way fence, unconscious, one of his legs broken just above the ankle, his back bruised, his face wounded and disfigured, his hands frozen, and, as we understand it, his fractured leg frozen.

As the result of his injuries, one of his legs is shorter than the other and his hands are mutilated by the amputation of at least some of his fingers. The first glimpse of consciousness he had was his overhearing a talk by his father-in-law about sending him to the Mullanphy hospital at St. Louis. This was about a week after he was hurt. As no question is raised over the extent of his injuries or the amount of damages recovered below, this part of the case need not be further pursued or developed.

It seems defendant's through passenger trains from the south did not stop at Leeper or Mill Springs, but did stop at Piedmont, a station a few miles north of Leeper. It seems there were two or three of these trains, grouped on the time schedule pretty close together, and, when on schedule time, passing Mill Springs in the small hours of the night, say, from one to two o'clock. Coming from afar, they were usually late at that inclement and treacherous season of the year. On the morning in question, the last of these trains was about three hours late and was the one running plaintiff down. It seems plaintiff thought the night passenger trains had passed up north before he took the track, and he did not remember of ever meeting a passenger train at that time in the morning; but he was conscious at the time of the fact that he was likely to meet a train -- witness his testimony: "Q. You knew the train would come along in a few minutes? A. Yes, sir; I knew there was trains coming along there at all times. . . . Q. Didn't you know that trains were liable to come along that way any minute? A. Yes, sir. Q. You say that is right then? A. Yes, sir."

Plaintiff was the only eye-witness testifying to the fact of his being struck by the locomotive of a northbound passenger train. So far as defendant's trainmen were concerned, they testified none of them saw him and none of them knew of the accident at the time and none of them heard of it until notified a fortnight or so afterwards. The testimony of the engineer and fireman, just referred to, must be considered here with an eye to any modification due to, or arising from, the testimony of two of plaintiff's witnesses. One of these witnesses was Ross. Plaintiff was hurt of a Monday morning, and Ross, who was then a section hand and now is a farm hand, had been to Poplar Bluff the Sunday before, a town 30 or 40 miles south of Mill Springs, and did not go to bed Sunday night. On being inquired of what he was doing in Poplar Bluff, he answered: "I went there browsing around." He further said, "I found right smart browsing." We infer his "browing" was drawn out to cover Sunday and Sunday night, and until he took the train that collided with plaintiff....