Ayers v. Wabash R. Co.

• Decision Date: 15 June 1905
• Parties: AYERS v. WABASH R. CO.
• Court: Missouri Supreme Court

88 S.W. 608

190 Mo. 228

AYERS v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

June 15, 1905.

1. RAILROADS — PRIVATE CROSSINGS — DUTY TO GIVE SIGNALS.

There being no statute requiring a railroad to give a signal on approaching a private crossing, its failure to sound the bell or whistle on approaching such a crossing is not negligence per se, but whether it is negligence or not depends upon the circumstances of the case.

2. SAME—INJURIES TO TRESPASSERS — CONTRIBUTORY NEGLIGENCE.

An intoxicated man, who seats himself on the end of a cross-tie on the main track of a railroad, and there sinks into a drunken stupor, is negligent.

3. SAME—DUTY OF ENGINEER — LOOKOUT— USE OF TRACK BY PEDESTRIANS.

A locomotive engineer is bound to be on the lookout for persons using the track at a place where it is, to the railroad's knowledge, habitually used for a footpath, but is not chargeable with notice that a man is liable to be lying on the track at such a place, and the mere fact that the engine strikes a man so lying on the track is not of itself sufficient to justify the inference that the engineer saw him, or failed to use ordinary care to discover him in time to prevent injuring him.

4. EVIDENCE — CONCLUSIONS OF WITNESS— VISUAL POWERS.

Testimony that on a clear day one could see a "small object" at a certain place on a railroad track from a standpoint of a quarter or half mile is incompetent unless it is the result of an actual experiment.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Action by Montie B. Ayers against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John T. Barker and Conkling & Rea, for appellant. Geo. S. Grover, for respondent.

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 La Plata. There is a well-beaten footpath 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 La Plata there is a private crossing over the railroad, called "Gates' 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 footpath in the track, going south. When he got as far at Gates' 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 40 miles an hour, came along, and struck him, inflicting serious injuries. As the engine approached Gates' 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. Gates' Crossing was constructed by cross-ties laid lengthwise the track and 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 35 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 30, 35, or 40 miles an hour, as some of the witnesses thought it was, could have been stopped within 300 or 400 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 attorney for 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 Gates' 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 40 miles an hour. At that speed the train could not be stopped shorter than within 600 or 700 feet. That he did not see the plaintiff until he was within 150 feet of him. The plaintiff was then lying on the west side of the west rail, his body showing about 5 or 6 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.

The only question for decision is, was the plaintiff entitled to have his case submitted to the jury under instructions authorizing a verdict in his favor under any view of the evidence? The plaintiff insists that the testimony of the engineer to the effect that he was at his post and looking, yet did not see him until it was too late, and that as soon as he discovered him he did everything possible to avert the injury, is not the plaintiff's evidence, and did not justify the court in giving the peremptory instruction. The proposition is that the engineer was the plaintiff's witness only in reference to the subjects on which he was examined by plaintiff, and as to the rest he was defendant's...