Boyd v. Wabash Western Ry. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Brace, J.
• Citation: Boyd v. Wabash Western Ry. Co., 16 S.W. 909, 105 Mo. 371 (Mo. 1891)
• Decision Date: 29 June 1891
• Parties: Boyd v. The Wabash Western Railway Company, Appellant

16 S.W. 909

105 Mo. 371

Boyd v. The Wabash Western Railway Company, Appellant

Supreme Court of Missouri, First Division

June 29, 1891

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed.

F. W Lehmann and George S. Grover for appellant.

(1) The rules of the company, governing the operation of extra trains, were irrelevant, the train in question not being an extra, the rules being exclusively for the government of employes, and it not appearing that Mr. Boyd was familiar with them, or that he relied upon their observance; and the failure, if any, to observe them had nothing to do with the accident. Stepp v. Railroad, 85 Mo. 223. (2) The demurrer to the evidence should have been sustained, it appearing from the evidence that Mr. Boyd met his death because of his own negligence in attempting to cross in front of a rapidly moving train, which he both saw and heard in abundant time for self-protection, and that, after he came into his position of peril, or even after it became apparent that he would place himself in a position of peril, the defendant's employes were powerless to avert the injury to him. Moody v. Railroad, 68 Mo. 470; Frick v Railroad, 75 Mo. 595; Fox v. Railroad, 85 Mo 679; Rine v. Railroad, 88 Mo. 392; Yancey v. Railroad, 93 Mo. 433; Dunkman v. Railroad, 95 Mo. 232; Williams v. Railroad, 96 Mo. 275. (3) The instruction given at plaintiff's request was erroneous, because, first, not applicable to the facts of the case; second, against the facts; third, charging the defendant's employes with knowledge that a man, going to meet a train, and within plain sight and sound of it, was not observant of it, and would place himself in peril of it, and holding them bound to act, not in view of what he had done, but in anticipation of what he was "going" to do, and this when there was nothing in his manner to suggest that he would put himself in peril. Moody v. Railroad, 68 Mo. 470; Maloy v. Railroad, 84 Mo. 270; Yancey v. Railroad, 93 Mo. 433. (4) The second instruction given by the court was erroneous, for the same reasons assigned against the instruction given at plaintiff's request, and because there was no evidence to warrant any finding that the defendant's employes could have observed anything in Mr. Boyd's manner to indicate that he was not observant of the train, and intended to put himself in its way. Authorities cited under points 2 and 3. (5) The instructions asked by defendant, and refused, should have been given. Authorities cited under points 2 and 3.

W. J. Hollis for respondent.

(1) The plaintiff was entitled to have the question of contributory negligence submitted to the jury. Beach on Con. Neg., p. 71; Railroad v. Ogier, 35 Pa. St. 71; Brasswell v. Railroad, 84 N.Y. 241; Railroad v. Steinberg, 17 Mich. 99; Moberly v. Railroad, 17 Mo.App. 542; Leslie v. Railroad, 88 Mo. 51; Cartwright v. Railroad, 52 Mich. 606; Tetherow v. Railroad, 98 Mo. 84. (2) The fact of defendant's custom with its trains at that time and place for so long was a circumstance which could have been properly considered by the jury, had the question of contributory negligence been submitted. Lawson on Usages and Customs, sec. 21, pp. 40-2; Wood on Master & Servant, pp. 401-776; Libby v. Railroad, 82 Mo. 299, and some of the cases above cited. (3) If the servants of defendant saw, or by the exercise of reasonable care and watchfulness could have seen, Boyd in peril, or carelessly going into peril, in time to have avoided injuring him, by the use of every and all the means at their command, with safety to the train and passengers, and failed to do so, defendant is liable. Kellny v. Railroad, 101 Mo. 67; Hilz v. Railroad, 101 Mo. 36; Railroad v. Blakely, 59 Ala. 471; Whitehead v. Railroad, 99 Mo. 263; Guenther v. Railroad, 95 Mo. 286; Dunkman v. Railroad, 95 Mo. 232. (4) If the servants of defendant were guilty of any acts of negligence immediately prior to their discovery of Boyd's peril, which was the cause of their being unable to avert the injury, defendant is liable. Brooks v. Railroad, 35 Mo.App. 571; Maher v. Railroad, 64 Mo. 267; Guenther v. Railroad, 95 Mo. 287; Dunkman v. Railroad, 95 Mo. 232. (5) Running at such a high rate of speed at such a populous and public place was gross negligence. Taylor v. Railroad, 83 Mo. 390; Stepp v. Railroad, 85 Mo. 229; Stephens v. Railroad, 86 Mo. 221; Young v. Railroad, 79 Mo. 336. (6) Same duty devolved on defendant's servants at this crossing or walk, as at one laid out and dedicated to the public. Kime v. Railroad, 90 Mo. 314; Sweeny v. Railroad, 10 Allen, 368, and cases therein cited; Murphy v. Railroad, 133 Mass. 121; Brown v. Railroad, 50 Mo. 461. (7) Defendant's servants were guilty of wanton and reckless conduct. Cooley on Torts, p. 668; Whitehead v. Railroad, 99 Mo. 263; Wilkins v. Railroad, 101 Mo. 93; Stepp v. Railroad, 85 Mo. 229. (8) The defendant failed to introduce evidence, but relied on its demurrer and instructions at close of plaintiff's case; which action warranted the jury in believing all the evidence most favorable to plaintiff, with all reasonable inferences which could fairly be drawn therefrom. Rine v. Railroad, 100 Mo. 234; Noeninger v. Vogt, 88 Mo. 592; Wilson v. Bd. of Ed., 63 Mo. 140; Buesching v. Gas Co., 73 Mo. 219. (9) The jury could well believe that the servants actually saw Boyd running for the depot, "looking only where he was going," slouch hat on, knowing from his actions that he did not intend to stop nor look up, and this when they were from six hundred feet to nine hundred feet away. Rine v. Railroad, 100 Mo. 228; Stepp v. Railroad, 85 Mo. 223, 230. (10) "Engineer must do more than look ahead; he must look to the right and to the left." Winters v. Cable Co., 99 Mo. 509; Kelly v. Railroad, 95 Mo. 285; Hilz v. Railroad, 101 Mo. 36. "This is a continuing duty of an imperative character." Kelly v. Railroad, 95 Mo. 285, and cases therein cited.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

In this action the plaintiff recovered judgment for $ 5,000 damages for the alleged negligent killing of her husband by one of defendant's trains. At the close of plaintiff's evidence the defendant demurred, and, its demurrer being overruled, the case was submitted to the jury on that evidence, under the following instructions:

The court gave the following instruction at the request of the plaintiff: "The court instructs the jury that notwithstanding you may find from the evidence that the deceased, Charles Boyd, was guilty of negligence in attempting to cross the track of defendant at the place and time that he did, yet if you further find and believe from the evidence that the servants of the defendant, managing the train, saw Boyd in danger, or, by the exercise of reasonable care, prudence and watchfulness on their part, might have seen Boyd going into peril, under circumstances showing that he did not observe the near approach of the train, and the danger to which he was exposing himself, in time to have prevented the injury, by using all the means at their command to slacken the speed of the train, having due regard for its safety and the safety of the passengers, and they failed to do so, then plaintiff is entitled to recover, and you should find for her and assess her damages at the sum of $ 5,000."

The court gave the following instruction at the request of defendant: "The court instructs the jury that the deceased had no right to rely upon the customary speed of defendant's trains in passing through the town of Renick, or upon the fact that defendant's regular passenger train had been in the habit of stopping at a certain place, or upon the rules of defendant read in evidence, and in reliance upon such facts to attempt to cross in front of the train by which he was struck and killed."

The court gave the following instructions of its own motion: "The court instructs the jury that it was the duty of deceased to look and listen if he could see and hear the train, for the purpose of avoiding injury by it; and, if at any time before he was struck he might have stopped his progress and avoided injury, then he was guilty of contributory negligence."

"The court instructs the jury, that if the servants of defendant in charge of its train saw deceased approaching the track, then they had the right to presume that he would not attempt to cross the track immediately in front of the train, and to proceed without abating the speed of the train upon such presumption, but if the defendant's servants managing the train saw, or might have seen by exercise of ordinary care, in time to have avoided the injury to deceased, that the deceased was running along heedlessly and without observing the approach of the train, and that he was about putting himself in front of the train through and by his own carelessness and heedlessness, then it was the duty of the said servants of the defendant to use every reasonable effort on their part to avoid the injury, and if they failed so to do under such circumstances, and the deceased, Boyd, was killed by reason thereof, the jury should find for the plaintiff."

The evidence for the plaintiff disclosed the following facts Charles Boyd, the husband of plaintiff, was a hotel keeper in the town of Renick in Randolph county. His hotel was situated about one hundred feet north of the depot. The defendant's tracks are between the hotel and the depot. A plank walk leads from the hotel across the tracks to the platform of the depot, and was used as a public crossing. In the prosecution of his business, he was in the habit of going to the depot upon the incoming of all passenger trains stopping at that station. One of defendant's regular passenger trains, the mail from Kansas City to St. Louis, was due from the west at...