Brown v. Hannibal & St. Joseph R.R. Co.

• Citation: 50 Mo. 461
• Parties: MARY BROWN, Respondent, v. THE HANNIBAL & St. JOSEPH RAILROAD COMPANY, Appellant.
• Decision Date: 31 August 1872
• Court: United States State Supreme Court of Missouri

50 Mo. 461

MARY BROWN, Respondent,

v.THE HANNIBAL & St. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Clinton Circuit Court.

Hall & Oliver, for appellant.

I. The fact that other persons crossed the railroad track at an improper place is no excuse for plaintiffs doing the same thing. To cross the railroad track at an improper place was a wrong, and the doing a wrong at one time is no excuse for repeating it.

II. There is no evidence in the case on which to base the first instruction. The evidence shows such negligence on the part of plaintiff as is both ““unaccountable and inexcusable.” She not only crossed the railroad at an improper place, but she crossed it with a large sun-bonnet drawn over her head, so that she could neither see nor hear. Such carelessness is entirely inconsistent with a right to recover damages founded on the negligence of defendant. It is an act of negligence to cross the track of a railroad at any other than the regular crossing. It is also an act of culpable negligence to cross a railroad at any place, with the sight or hearing obstructed. In this case both these acts occurred, and the court therefore committed error in submitting the case to the jury under said first instruction. (19 Ill. 499; 20 Ill. 478, 487-8; 55 Penn. St. 401; 21 Wis. 257; 1 Allen, 189; 39 N. Y. 366-7; 24 N. Y. 441.)

III. In this case as proved, the defendant was liable only for a willful injury or its counterpart, gross negligence. Nothing is better settled than the right of railroad companies to the lawful use of their roads, without let, hindrance or control of those who have no right to interrupt or molest them. If an adult place himself upon a railroad where he has no right to be, but where the company is entitled to a clear track and the benefit of the presumption that it will not be obstructed, and should be run down, the company would be liable only for willful injury or gross neggence. (47 Penn. St. 301, 303-4; 8 Barb. 379, 380; Shear. & Redf. Negl. 374, note 1; id., § 488; 24 N. Y. 440; 38 N. Y. 443; 39 N. Y. 366-7; 4 N. Y. 530, 532, 540, 541.)

IV. The sixth instruction asked by defendant should have been given. (24 N. Y. 441; 47 Penn. St. 304.)

V. The verdict of the jury was not only without evidence, but it was against evidence. It was manifestly given under prejudice, and should not be permitted to stand. The whole evidence and every part of it shows that plaintiff was guilty of careless ness or recklessness, and that defendant used all due and proper care.

Wm. Henry, Jr., for respondent.

I. The second instruction given for plaintiff below is proper. (Kennedy v. North Mo. R.R. Co., 36 Mo. 351, 364; Johnson v. Hudson River R.R. Co., 20 N. Y. 65; Fero v. Buffalo & State Line R.R. Co., 22 N. Y. 209, and cases cited; Hill. Torts, 340, § 2; 1 Redf. 520, 522; Shear. & Redf. Negl. 18, § 21; id. 25, § 24; id. 552, § 477.)

II. The third instruction given for the plaintiff below is proper. (Huelsenkamp v. Citizens' Railway Co., 37 Mo. 537, 552-3, and cases cited; Morrissey v. The Wiggins Ferry Co., 43 Mo. 380, 383; Shear. & Redf. Negl. 10, § 10.)

III. The fifth instruction is not erroneous, and might have been much stronger or more favorable to the plaintiff. (Kennedy v. North Mo. R.R. Co., supra; 36 Mo. 365; 2 Greenl. Ev. 280, §§ 267-8.)

IV. The court below was clearly right in refusing the sixth and last instruction asked by the defendant. It substantially tells the jury that there can be no recovery for an injury done by a railroad company on its track, where there is no street or road crossing, which is clearly wrong; for even a willful trespasser assumes only the risks which are incident to and ordinarily result from the position in which he places himself--the risk of mere accident--and does not discharge the defendant from the use of ordinary care and prudence. (1 Hill. Torts, 145; Kerwhaker v. C. C. & C. R.R. Co., 3 Ohio St. 172.) The established law in cases like this is that the plaintiff may recover, although a trespasser at the time and contributing to the mischief, if the defendant could, in the exercise of reasonable diligence, have prevented the injury. (Huelsenkamp v. Citizens' R.R. Co, 37 Mo. 537, 553; Morrissey v. Wiggins Ferry Co. 43 Mo. 380-3; Ill. Cent. R.R. Co. v. Middelsworth, 46 Ill. 494-499; Birge v. Gardner, 19 Conn. 507, 511-12; Rauch v. Lloyd, 31 Penn. St. 358; Kerwhaker v. C. C. & C. R.R. Co. supra; Hill. Torts, supra.) The defendant should not be heard to complain in this case, of the plaintiff being a trespasser and the author of her own wrong, for she was prevented from crossing the track of the railroad at the only public crossing in the town by defendant's own omission to remove its cars from such crossing. (Morrissey v. Wiggins Ferry Co., 47 Mo. 521.)

V. The court very properly permitted the evidence to go to the jury, that the place where the plaintiff attempted to cross the defendant's railroad and received the injury had long been used by her and the citizens of the town as a crossing, while the public street or highway near by (the only one in town) was obstructed by defendant's engines and cars; for the evidence showed, or all all tended to show, that it was so obstructed at the time of the injury, which fact the jury, under defendant's instructions, must have found. This evidence not only explained why defendant was there, but was calculated to aid and enable the jury to determine what care and caution she was exercising at the time. Plaintiff's position was caused by defendant's stopping up the highway, which was unlawful as being against public policy. (Rauch v. Lloyd, 31 Penn. 358.)

VI. Taking all the instructions together, they fairly present the law.

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced in the court below by the plaintiff for the purpose of recovering damages for personal injuries. It appears from the record that the plaintiff was in the town of Cameron, and wanted to cross the street where the defendant's track was laid upon the same; that before she arrived at the crossing she discovered that a train of cars was standing upon the track and the crossing was obstructed, so that she could not pass at that place. She then turned and crossed the track at a different place, where there was no public crossing, but there was a path where people were accustomed to cross occasionally, but it does not seem that the road had ever authorized anybody to cross at that particular place. When plaintiff went on the track there was an engine and tender standing about six feet distant, and as she had nearly crossed over, the cars commenced moving and the tender struck her, the wheels passing over one of her legs, just above the ankle, crushing it so that amputation became necessary. She swears that no signal was given of the moving of the train, and the first notice she had of the cars moving was being struck by them. There was other evidence tending to prove that no bell was rung when the engine was started. On the other hand, there was evidence going to show that at the time the train was started the bell was rung and the alarm was given. Upon this state of facts the court made the following declarations of law for the plaintiff:

1. “If the jury believe from the evidence that the defendant, through the negligence or carelessness of its agents, and without negligence of plaintiff, inflicted upon the plaintiff the injury as mentioned in the petition, they will find for the plaintiff.

2. Railroad companies, owing to the dangerous character of the business they engage in, are held to the greatest care in the operation of their machinery and vehicles; and if the jury believe from the evidence that the defendant's agents or servants, in managing the locomotives or other machinery, failed to use such care and caution, by which the injury was done to plaintiff, they will find for plaintiff.

3. Even if the jury should believe from the evidence that the plaintiff was guilty of negligence or carelessness which contributed to the injury, yet if they further believe from the evidence that the agents or servants of defendant, managing the locomotives or machinery of the defendant with which the injury was inflicted, might have avoided the said injury by the use of ordinary care and caution, the jury will find for plaintiff.”

The court gave all the instructions asked for by the defendant except the sixth, which is as follows:

6. “If the jury believe from the evidence that the injury in proof happened on the railroad track of defendant, and where there was no street or road crossing, the plaintiff cannot recover, because the defendant in the use of its road is not bound to keep a look-out on its own ground, as against those who have no lawful right there, but may use the same for its own lawful purposes; and any one going on said track where there is no street or road crossing, is there at his own peril and in his own wrong, and therefore cannot recover, because his own wrong has contributed to his own injury.”

The point raised in this court, that the evidence did not correspond with the petition, we do not think can be maintained. The allegation in the petition was that the injury occurred at a public crossing, and the proof showed that it happened at a private crossing; but no objection was made to it on that account in the court below, and no advantage was attempted to be taken in the manner pointed out by statute. (Fischer v. Max et al., 49 Mo.; Wagn. Stat. 1033, § 1.)

With the weight of testimony we have nothing to do. It is sufficient for us that both parties introduced evidence tending to prove their respective allegations. The authorities mostly cited and relied on by the defendant are from courts where the established law is that the courts themselves determine what is negligence, and take the case from the jury when in their opinion the evidence shows that the plaintiff has been guilty of any...