Burde v. Chicago, B. & Q. Ry. Co.

• Decision Date: 04 March 1907
• Citation: 100 S.W. 509,123 Mo. App. 629
• Court: Missouri Court of Appeals
• Parties: BURDE v. CHICAGO, B. & Q. RY. CO.

100 S.W. 509

123 Mo. App. 629

BURDE v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

1. RAILROADS—PERSONS ON TRACK—INJURIES —CONTRIBUTORY NEGLIGENCE.

Plaintiff, while endeavoring, to get a fishing pole from under a platform alongside of a railroad track, knelt beside the platform, his feet extending over one rail of the track about 50 feet from a switch, and, while so engaged, a car was switched on the track and approached him at the rate of three or four miles an hour. He was not aware of the approaching car until an instant before it reached him, and in endeavoring to escape was struck by the brakeman's ladder. Held, to constitute contributory negligence.

2. SAME—PRESENCE OF TRESPASSERS.

An engineer is entitled to presume that the track is clear, except at places where people have a lawful right to be, or where by open, continuous, and extensive use the track has become a path for footmen or put to some similar use.

3. SAME—PRECAUTIONS—TRESPASSERS.

If an engineer has actual knowledge of facts which would suggest to a reasonably careful and humane person that another is in a position of peril and unconscious thereof, he should employ all reasonable means at his command to avoid injuring the person, although such person was a trespasser and was not attempting to protect himself.

4. SAME — EVIDENCE — TRESPASSER'S PERIL — KNOWLEDGE OF ENGINEER.

The burden is on a trespasser on a railroad track to show affirmatively that he was in imminent peril, was unconscious thereof, and that, if the engineer whose act resulted in the trespasser's injury had exercised reasonable care, he would have had knowledge of his peril in time to avert the injury by a reasonable employment of the means at hand.

5. SAME—SUFFICIENCY OF EVIDENCE.

Evidence in an action to recover for injuries received on a railroad track considered, and held not to show that plaintiff's peril should have been apparent to a reasonably prudent person in the position of the engineer whose act resulted in plaintiff's injury.

Appeal from Circuit Court, Buchanan County; H. M. Ramey, Judge.

Action by Frank H. Burde against the Chicago, Burlington & Quincy Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Mytton, Parkinson & Crow, for appellant. Culver & Phillip, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The answer was a general denial and plea of contributory negligence. At the conclusion of all the evidence, plaintiff was nonsuited and after his motion to set aside the nonsuit was overruled brought the case here on appeal.

The injury occurred in the railroad yards of defendant in St. Joseph at a point near the south end of its freight depot. The tracks of the main line, which runs north and south, are west of the freighthouse, but several tracks diverge from these tracks at a point south of the building, and run into it through several openings therein. Platforms extending south from the building occupy the spaces between these depot tracks and are used in the loading and unloading of cars. Plaintiff was struck by a moving freight car, which was being shunted by a switch engine towards the depot on the westernmost track leading into it. This track curved eastward from its junction with the passing tracks, and the triangular space inclosed by the two tracks and the building was occupied by a short platform. A longer platform ran parallel to the track on the east. It was built on piling and was two or three feet above the ground. When box cars stood on the track, the space between them and the west line of the last mentioned platform was about eight inches. Plaintiff, a young man about 19 years old, had secreted a fishing pole under this platform, and, desiring to use it, went to a point in the track opposite the place where he supposed the pole to be, and knelt for the purpose of reaching under the platform for it. In the position he assumed his feet extended over the east rail of the track. Evidently he was delayed by difficulty either in finding the pole or in extracting it from its hiding place, and, while he thus was engaged, a freight car was run on the track towards the depot by a switch engine at work in the vicinity. Plaintiff was about 50 feet from the switch, and the car approached him at the rate of three or four miles per hour. He did not become aware of its presence on that track until an instant before the car reached him, and while rising to his feet in his sudden effort to escape was struck by the brakeman's ladder near the end of the car, overthrown, and in some manner one of his feet was crushed by one of the wheels.

Plaintiff's negligence is indisputable. He was a trespasser on defendant's property, deliberately chose a position in the midst of activities that were pregnant with danger to him, and then took no thought for his own safety. Such conduct manifestly is so careless...