Barker v. Hannibal & St. J. R. Co.

• Decision Date: 18 March 1889
• Citation: 11 S.W. 254,98 Mo. 50
• Court: Missouri Supreme Court
• Parties: BARKER v. HANNIBAL & ST. J. R. CO.

11 S.W. 254

98 Mo. 50

BARKER v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri.

March 18, 1889.

RAILROAD COMPANIES — INJURIES TO PERSONS ON TRACK.

Deceased walked upon the railroad track where he had no right, and knowing that a train was due from behind him, but did not look in that direction, and was struck and killed. The track was properly fenced. The train gave no signal, though the engineer could have seen plaintiff at nearly 200 yards distance. Held, that the railroad company was not liable.¹ RAY, C. J., and BARCLAY, J., dissenting.

Appeal from circuit court, Buchanan county; VINTON PIKE, Special Judge.

Action by Malissa Barker against the Hannibal & St. Joseph Railroad Company, for the death of plaintiff's husband. A demurrer to plaintiff's evidence was overruled, and defendant appeals.

White & Spencer, W. P. Hall, and Doniphon & Reed, for respondent. Strong & Mosman, for appellant.

BLACK, J.

This is a suit by the widow of E. B. Barker, to recover the statutory penalty of $5,000 for the death of her husband, who was run over and killed by a train of the defendant's cars. The defendant offered no evidence, and the question is whether the defendant's instruction in the nature of a demurrer to the plaintiff's evidence should have been given. The evidence offered by the plaintiff discloses these facts: Barker resided in a house close to the defendant's track. There is a public road 35 feet south of his house. The south side of this road is separated from the defendant's right of way by a fence, and the track of the Wabash Railway Company runs parallel to the track of the defendant, but adjoining and to the south thereof. Barker left his house, went south across the public road, which goes directly to St. Joseph, got over the fence, and ascended a bank some six or eight feet in height to the defendant's track. He then started westward on the track towards St. Joseph, where he was going, without stopping or looking to the east. He had not traveled more than 60 to 75 feet when a regular daily west-bound passenger train came through a cut, around a curve, and on a down grade, and ran over and killed him. Had Barker looked to the east, he could have seen the train for a distance of 200 yards, and the engineer could have seen a person on the track for nearly the same distance. Barker knew the train was due when he got upon the track. There was a tie train standing on the Wabash track at the time, and it seems probable that his attention was attracted to the men at work on that train. He was a little hard of hearing, but could hear ordinary conversations. The evidence tends to show that no signal was given by sounding the whistle or ringing the bell, and that the train, if on a level track, could have been stopped in a distance of 100 yards. It does not appear within what distance it could have been stopped on this down grade. There can be no doubt but Barker was guilty of negligence in going upon the track, at a time when he knew the train was due, without looking or listening for it. Besides this, he got upon the track at a place other than a crossing, and was making a foot-path out of the railroad track, and that, too, at a place where the defendant was required to and had fenced its road. In short, he was a trespasser, declared to be such by the statute law of this state. Section 809, Rev. St. 1879. Being a trespasser, the company owed him no duty, except not to wantonly, willfully, or with gross negligence injure him. The company was not in duty bound to look out for him. Maher v. Railroad Co., 64 Mo. 267; Hallihan v. Railroad...