Carr v. Missouri Pac. Ry. Co.

• Decision Date: 06 March 1906
• Citation: 92 S.W. 874,195 Mo. 214
• Parties: CARR v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

92 S.W. 874

195 Mo. 214

CARR v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. RAILROADS — INJURY TO PERSON NEAR TRACK—CARE REQUIRED AS TO LICENSEE.

A railroad company owes to a licensed walking on its right of way no greater duty than not to negligently or wantonly injure him.

2. SAME — NEGLIGENCE — INJURY FROM DISLODGED BRAKESHOE.

Where a licensee walking near a railroad track was struck and injured by a brakeshoe, which flew from a passing train, the railroad company was guilty of no negligence.

3. APPEAL—GROUNDS FOR REVERSAL—ERRORS AFFECTING PARTY NOT ENTITLED TO SUCCEED.

Erroneous instructions are no ground for the reversal of a judgment for defendant, if plaintiff was not, from any point of view, entitled to recover.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by William Carr against the Missouri Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

P. Wm. Provenchere, for appellant. Martin L. Clardy and Henry G. Herbel, for respondent.

BURGESS, J.

This is an action for damages in the sum of $10,000 for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant. The petition alleges that the public and plaintiff were for a long time accustomed to use as a footway, with the knowledge and consent of defendant, a certain part of its roadbed in the city of Webster Groves, in St. Louis county; that plaintiff, while walking upon that part of defendant's right of way or roadbed, was struck by a piece of brakeshoe flying from a car of a passing train of defendant; that the said brakeshoe was part of an appliance used for operating the train, and was in a defective and dangerous condition, liable to break in the operation of the train, and a part thereof to fly off and injure persons along the road, all of which defendant knew, or by ordinary care might have known; that defendant negligently permitted the brakeshoe to be on the train in such defective and dangerous condition, and the brakeshoe, being in a defective and dangerous condition, broke, and a part of it flew from the train and struck and injured plaintiff. The defenses were a general denial and plea of contributory negligence. Plaintiff replied, denying all new matter set up in the answer.

The facts are substantially as follows: Plaintiff resides in St. Louis county, just outside the limits of Webster Groves, near the roadway of defendant. Tuxedo Station, near which the accident is alleged to have occurred, is on the outskirts of the town. On Sunday morning, April 20, 1902, plaintiff started to church, and while on the way walked along the north side of the northern most of defendant's two tracks, running in an easterly and westerly direction at that point. The track next to and north of which he was walking was what was known as the "west-bound track," and the track south of it, which was the one on which the train was moving at the time of the accident, was known as the "east-bound track." Plaintiff was walking 16 or 17 feet north of the train, from which he claims the brakeshoe flew and struck him. He testified that the train was the "fast mail," and his witness, Murphy, who was walking a short distance behind him the time he was struck, also testified that it was the "fast mail," and gave its number as No. 10. This was the regular fast mail train which was due at Lake Junction, a short distance west of Tuxedo, at 6:58 a. m. There was another train, No. 8, which arrived at Lake Junction at 6:45 a. m., or 13 minutes before the fast mail was due there. Plaintiff was accompanied by a young lady, who was walking immediately behind him. When Carr got within about 200 feet of Tuxedo Station, this fast mail train, No. 10, passed him on the east-bound track; `there being the west-bound track between him and the passing train, or a space of at least 17 feet. As he saw it approaching, he stopped and looked at the train while it was passing and was struck by some dark object which flew from the train, but which he could not distinguish. The lady who was walking immediately behind him, seeing him reel and about to fall, caught him and helped him to his home. She testified that she picked up a part of a brakeshoe at the place where he was struck at the time, but, after carrying it a short distance, dropped it and assisted Mr. Carr home. Murphy, his other witness, who was a section hand in defendant's employ, happened to be walking west several hundred feet behind Carr and the lady, saw the fast mail, No. 10, approaching, and, as it was going by Carr, saw him reel, and the lady take hold of him to hold him up. He went to them and assisted Carr, who was a next-door neighbor of his, to his home. He then, within 20 minutes thereafter, went back to the scene of the accident and found a piece of a brakeshoe about at the place where he saw Carr stagger and throw it down the embankment. Mrs. Carr, his sister-in-law, who was with Carr at the time of the accident, went back to the scene of accident about an hour and a half thereafter, and states that she found this brakeshoe at about the place where she had dropped it, although Murphy testified that he had thrown it down the embankment. The tracks of the defendant are laid on a high embankment along there, and there is a road known as Marshall avenue, which runs parallel with the railroad tracks a short distance west of plaintiff's home, and south of defendant's right of way there was a public road running to Tuxedo Station, which Carr could have used if he had wished to avoid the railroad tracks. Instead of doing that, he walked along the north side of the west-bound track, towards Tuxedo, and the church he was going to attend, as it was a more direct route and the walking better. His only object in using defendant's right of way was his own convenience. It was shown by quite a number of witnesses who testified for plaintiff that people in that vicinity used the defendant's right of way and tracks for that purpose quite generally. The defendant proved, and its proof was not controverted by the plaintiff, that it inspected this train at Sedalia and at Pacific, Mo., before it reached St. Louis; that it was in good condition, and no brakeshoes were missing; that immediately upon its arrival in St. Louis that morning it was thoroughly inspected, and no brakeshoes were found missing therefrom; that, shortly after this regular inspection was made at St. Louis, a message was received by the superintendent's office, which was near the place where the train was standing, to the effect that it was claimed that a man had been struck by a brakeshoe which came from that train, near Tuxedo, that morning; and that it was thereupon again inspected by three of four inspectors, all of whom testified that, after a thorough inspection thereof, they found there was no brakeshoe missing therefrom.

At the conclusion of the evidence the plaintiff asked the court to instruct the jury as follows:

"(1) If the jury believe from the evidence that on April 20, 1902, the plaintiff, while walking on the right of way and roadbed of defendant in the city of Webster Groves, in St. Louis county, Madison, was struck and sustained injury by a piece of an iron brakeshoe which was flung against him with force from a car of a moving passenger train, by reason of the movement of the train, which train was then and there one of the regular trains of the defendant engaged in carrying passengers, and that the said brakeshoe was an appliance of said train, and was then and there made use of and employed by defendant in operating said train, and if the jury find from the evidence that said brakeshoe was in a defective and dangerous condition and was liable to break and to be in whole or in part flung off while being used as aforesaid, and was liable to inflict injury on persons along the road with whom it came in contact, and if the jury find from the evidence that all of said matters were known to the defendant at and before said time, or [might] would have been known to it by ordinary care on its part in time to have remedied such defective and dangerous condition before said time in the exercise of ordinary care on its part, and if the jury further find from the evidence that plaintiff did not in any manner contribute to bring about the contact between himself and said piece of said iron brakeshoe, then the jury will return a verdict for the plaintiff, provided they further find from the evidence that the place where plaintiff was injured was not fenced, and had for years, with the [tacit] knowledge and consent of defendant, been habitually used by the public as a public footway and footpath. `Ordinary care,' as used in this instruction, is such as a person of ordinary prudence and caution, according to the usual and general experience of mankind, would exercise in the same situation and circumstances as those of the defendant, whose conduct in that regard is in question in this case." Which instruction, as offered, the court refused to give. And the court of its own motion changed said instruction by striking out the words between brackets and inserting the words in italics and said instruction, as so changed, the court gave; and to each and all of which rulings and actions of the court in refusing said instruction as offered, and in so changing said instruction, and giving the same so changed, the plaintiff duly excepted at the time.

"(2) The court instructs the jury that the answer of defendant sets up contributory negligence on the part of plaintiff as a defense to this action, and is in the nature of a plea of confession and avoidance, and impliedly admits some negligence on the part of defendant...