Ahnefeld v. Wabash Railroad Company

Decision Date19 May 1908
Citation111 S.W. 95,212 Mo. 280
PartiesMARGARETHA AHNEFELD v. WABASH RAILROAD COMPANY, Appellant
CourtMissouri Supreme Court

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

Affirmed.

James L. Minnis for appellant; Jones & Conkling of counsel.

(1) The law conclusively presumes for the purposes of this action that deceased was a trespasser and therefore the court committed error in admitting evidence over defendant's objection tending to show that he was a bare licensee. R. S 1899, sec. 1105; Ryan v. Railroad, 88 Mo. 392; Barker v. Railroad, 98 Mo. 50; Hyde v Railroad, 110 Mo. 272. (2) As deceased must be conclusively presumed to have been a trespasser, defendant was not bound to look out for him, and therefore the demurrer to plaintiff's evidence should have been sustained. R. S 1899, sec. 1105; Sullivan on Statutory Construction, p. 331, sec. 253, p. 373, sec. 289; Beach on Contr. Negligence (3 Ed.), sec. 203; 3 Elliott on Railroads (1 Ed.), p. 1956, sec. 1253, and pp. 1960 and 1961, sec. 1254; 2 Thompson on Negligence, secs. 1706 and 1711; Ryan v. Railroad, 88 Mo. 392; Barker v. Railroad, 98 Mo. 50; Hyde v. Railroad, 110 Mo. 272; O'Donnell v. Railroad, 197 Mo. 113. (3) If section 1105 be disregarded, still the demurrer should have been sustained, because the deceased was a trespasser in fact, or, at best, a bare licensee, and therefore could not complain of the failure to keep a lookout for him. 2 Thompson on Negligence, sec. 1718; 3 Elliott on Railroads (2 Ed.), p. 1947, sec. 1248; Beach on Contributory Negligence, sec. 212; Carr v. Railroad, 195 Mo. 297; Chaney v. Railroad, 176 Mo. 598; Wenker v. Railroad, 169 Mo. 592; Feeback v. Railroad, 167 Mo. 206; Berry v. Railroad, 124 Mo. 223; Frye v. Railroad, 200 Mo. 377; Railroad v. Womack, 84 Ala. 149. (4) The demurrer should have been sustained, because under the peculiar facts in this case the failure of the engineer to look out for deceased was not negligence, even if it be conceded that it would have been his duty under ordinary circumstances to have kept a lookout. Boyd v. Railroad, 105 Mo. 371. (5) The demurrer should have been sustained, because the gross negligence of deceased, under the peculiar circumstances, was the sole cause of his injury and death. Carrier v. Railroad, 175 Mo. 470; Holwerson v. Railroad, 157 Mo. 243. (6) Defendant's motion in arrest of judgment should have been sustained. Frye v. Railroad, 200 Mo. 377.

Lozier, Morris & Atwood for respondent.

(1) A demurrer to the evidence admits every fact which any of the evidence tends to prove, and also every fact which the jurors might, with propriety, infer from the facts before them, and should be allowed only when the evidence, thus considered, wholly fails to make proof of some essential averment. Noenger v. Vogt, 88 Mo. 592; Wilson v. Board of Education, 63 Mo. 140; Kelly v. Railroad, 70 Mo. 608; Frick v. Railroad, 75 Mo. 609; Fearons v. Railroad, 180 Mo. 220. (2) The court did not err in overruling the demurrer to plaintiff's evidence, as there was ample evidence tending to show actionable negligence on the part of defendant; hence, the case was properly submitted to the jury. Fearons v. Railroad, 180 Mo. 208; Morgan v. Railroad, 159 Mo. 262; Eppstein v. Railroad, 197 Mo. 720; Frye v. Railroad, 200 Mo. 401; Scullin v. Railroad, 184 Mo. 705; Chamberlain v. Railroad, 133 Mo. 587; Williams v. Railroad, 96 Mo. 275; Guenther v. Railroad, 95 Mo. 286; Guenther v. Railroad, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Murrell v. Railroad, 105 Mo.App. 88; Kreis v. Railroad, 131 Mo. 533; Harlan v. Railroad, 65 Mo. 24; Frick v. Railroad, 75 Mo. 595; O'Mellia v. Railroad, 115 Mo. 221; Scoville v. Railroad, 81 Mo. 483; Hicks v. Railroad, 64 Mo. 439; Ayers v. Railroad, 190 Mo. 238; Sites v. Knott, 179 Mo. 708. (3) The track of defendant, between the water tank and the cattle guards, having, with the knowledge of defendant and its employees, been habitually used for many years by a large number of pedestrians as a footpath, the employees of defendant in charge of the train knew that the presence of such persons in the switch yards and on its track might reasonably be expected; and it was therefore their duty to keep a careful lookout in order to discover such persons, and if they failed to do so, and if the death of Carl Ahnefeld resulted from such failure, they were guilty of actionable negligence. Fearons v. Railroad, 180 Mo. 208; Morgan v. Railroad, 159 Mo. 262; Eppstein v. Railroad, 197 Mo. 720; Frye v. Railroad, 200 Mo. 400; Scullin v. Railroad, 184 Mo. 705; Chamberlain v. Railroad, 133 Mo. 587; Williams v. Railroad, 96 Mo. 275; Guenther v. Railroad, 95 Mo. 286, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Murrell v. Railroad, 105 Mo.App. 88; Kreis v. Railroad, 131 Mo. 533; Harlan v. Railroad, 65 Mo. 24; Frick v. Railroad, 75 Mo. 595; O'Mellia v. Railroad, 115 Mo. 221; Scoville v. Railroad, 81 Mo. 483; Hicks v. Railroad, 64 Mo. 440; Ayers v. Railroad, 190 Mo. 238; Sites v. Knott, 197 Mo. 708; Garner v. Trumbull, 94 F. 321; Ashworth v. Railroad, 116 Ga. 635; Railroad v. Schuster (Ky.), 7 S.W. 874; Railroad v. Smith, 87 Tex. 348; Taylor v. Canal Co., 113 Pa. St. 162; Railroad v. Rogers, 100 Va. 324; 2 Thompson on Neg. (2 Ed.), secs. 1725, 1711 and 1712. (4) It was a question for the jury to say whether the use of the track and switch yards was of such long standing, and of such a nature and extent, as to impose on the employees of defendant, on approaching the point of the catastrophe, the duty of anticipating the probable presence of persons on the track. Eppstein v. Railroad, 197 Mo. 734; Garner v. Trumbull, 94 F. 321; Railroad v. Lowell, 151 U.S. 209; Hansen v. Railroad, 105 Cal. 379. (5) Defendant's servants in charge of its trains, with the slightest care upon their part, and by looking ahead of them, could have seen deceased for one-fourth of a mile before he was struck, and in view of the dangerous instrumentality which they were handling, and the long-continued practice of people to walk on said track, they should have been on the lookout; and had they looked, they would have seen that deceased was oblivious of the approach of defendant's train from the west, and that some warning or signal was necessary in his perilous situation. Defendant's servants wholly failed to sound the whistle, or ring the bell, or give him any warning whatever, and in this there was culpable negligence. Eppstein v. Railroad, 200 Mo. 720; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 587; Scullin v. Railroad, 184 Mo. 705; Williams v. Railroad, 96 Mo. 275; Guenther v. Railroad, 95 Mo. 286, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361. (6) The evidence tended to show that the engineer saw Carl Ahnefeld in ample time to have warned him, and to have saved his life, by the exercise of ordinary care, and that he failed to do it. This failure was actionable negligence on the part of defendant, regardless of whether defendant's track had been habitually used as a footpath by the public. Eppstein v. Railroad, 197 Mo. 72. (7) The negligence of deceased does not bar plaintiff's right to recover, under the facts of this case. Kellny v. Railroad, 101 Mo. 74; Morgan v. Railroad, 159 Mo. 275; Eppstein v. Railroad, 197 Mo. 737; Sites v. Knott, 197 Mo. 708. (8) Though deceased was hard of hearing, it was defendant's duty to give him the same signals that it is required to give to a person in the possession, in an ordinary degree, of the sense of hearing, so that deceased might have such chance as his infirmity has left him of hearing and being saved. Railroad v. Cooper, 6 Am. and Eng. R. R. Cas. 5; Morgan v. Railroad, 159 Mo. 262; Poole v. Railroad, 53 N.C. 340; Railroad v. Triplett, 38 Ill. 482; Railroad v. Murphy, 17 O. C. C. 223; Railroad v. Stroud, 64 Miss. 784; Railroad v. Cook, 60 N.W. 899; Railroad v. Hanna, 79 S.W. 639; Campbell v. Railroad, 40 P. 997; Thompson v. Railroad, 40 L. R. A. 172; Lortz v. Railroad, 40 N.Y.S. 253; 2 Thompson on Neg., sec. 1782.

OPINION

FOX, P. J.

This suit was instituted by plaintiff in the circuit court of Carroll county to recover $ 5,000, under the second section of the Damage Act, for the death of her husband, Carl Ahnefeld, who was struck and killed by a work train on defendant's railroad, near Carrollton, Missouri, on the 18th day of June, 1904. From a judgment in favor of plaintiff, defendant appeals.

The amended petition alleged that deceased at the time he was killed was walking in an easterly direction on defendant's track, within its switch limits, at about one-quarter of a mile east of its depot at Carrollton; that the track at the point of the accident, and for a long distance in either direction, was level and practically straight, "which was uninclosed and which for many years pedestrians to and from the said town of Carrollton and the said station and depot of defendant at said town of Carrollton, had been accustomed to use as a road or footpath by the forbearance and tacit consent of the defendant;" that deceased was unaware of the near and dangerous approach of said train, and that defendant's agents and servants in charge of the train negligently failed to either ring the bell, sound the whistle or give any other signal by which plaintiff's husband might be warned of the near and dangerous approach of said train, and that defendant's agents and servants in charge of the train either saw deceased in peril, or could have seen him in peril had they been on the lookout for him, in time to have averted his death, but neglected to do so.

The answer, after admitting the incorporation of ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT