Carr v. Missouri Pacific Railway Company
| Decision Date | 29 March 1906 |
| Parties | CARR, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Affirmed.
P. Wm Provenchere for appellant.
(1) If the tracks or roadbed of a railroad company are used, and have for a long time been used, by the public as a footway with the knowledge of, and without objection from, the company, one in so using such roadbed would not be a trespasser. Le May v. Railroad, 105 Mo. 370; Lynch v. Railroad, 111 Mo. 609; Morgan v. Railroad, 159 Mo. 279. The statute (sec. 1105) implies that one may walk on the tracks of a railroad on "a publicly-traveled road." (2) The company owes it as a duty even to trespassers to take precaution or care not to injure them if there is reason to anticipate their presence. Brown v. Railroad, 50 Mo. 461; Williams v. Railroad, 96 Mo. 281; Fiedler v. Railroad, 107 Mo. 651; 21 Am. and Eng. Ency. Law (2 Ed.), 470; Railroad v. Stout, 17 Wall. 659. (3) A railroad company owes a duty not only to passengers, but to the public, a duty of a public character, to conduct its business in a manner safe to the public, and certainly to all who may be rightfully on its route. Brown v. Railroad, 50 Mo. 467; Lewis v. Railroad, 59 Mo. 504; Hicks v. Railroad, 64 Mo. 439. From the above it follows: If the tracks or roadbed of a railroad company are used, and have for a long time been used, by the public, as a footway, with the knowledge and tacit consent of the company, and one while so using such roadbed is injured through the company's negligence in having and using on a passing train, in the operation thereof, an appliance that it knew, or by ordinary care would have known, was defective, and liable to fly off and injure persons along the route of the train, the company is liable. (4) In order that a party may be liable for negligence, it is not necessary that he should have contemplated, or been able to anticipate the particular consequences which ensued, or the precise injuries sustained by plaintiff. It is sufficient if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected. That the occurrence causing the injury is unusual or usually harmless is immaterial. 21 Am. and Eng. Ency. Law (2 Ed.), 487; Miller v. St. Louis, 90 Mo. 394; Graney v. Railroad, 140 Mo. 98; Hoepper v. Southern Hotel, 142 Mo. 388.
Martin L. Clardy and Henry G. Herbel for respondent.
Inasmuch as plaintiff was on our right of way solely for his own convenience, and not for any purpose from which any benefit could possibly flow to us, we were under no duty whatever to protect him from casualties, such as he encountered on this occasion, but in using our right of way for his own convenience and for a purpose wholly disconnected with any business of the railroad company, he took the license with its concomitant perils. Wencker v. Railroad, 169 Mo. 599; Moore v. Railroad, 84 Mo. 487; Morgan v. Railroad, 7 F. 79; Railroad v. Monday, 31 Am. and Eng. R. R. Cas. 425; Cusiek v. Adams, 115 N.Y. 55; De La Pena v. Railroad, 74 S.W. 58; Schreiner v. Railroad, 90 N.W. 400; Redigan v. Railroad, 28 N.E. 1134; Farqua v. Railroad, 28 So. 850; Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Henry v. Railroad, 76 Mo. 295. There was an absolute dearth of evidence to fasten any liability on defendant for this man's misfortune. Our evidence showed that this train had been carefully inspected at at least two points before it reached the scene of the accident, and that when it got into the union depot it was found that all the brake-shoes were intact. Plaintiff was using our right of way for his sole convenience and not for any business connected with the railway company, and, therefore, the company owed him no duty to protect him against injuries of this character. But, even if there had been a duty resting on it to protect him, the accident was one of such unusual occurrence that no human foresight could have anticipated that it would occur, and hence defendant ought not to be liable for not forecasting it.
This is an action for damages in the sum of ten thousand dollars 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 brake-shoe flying from a car of a passing train of defendant; that the said brake-shoe 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 brake-shoe to be on the train in such defective and dangerous condition, and the brake-shoe, 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 northernmost of defendant's two tracks, running in an easterly and westerly direction at that point. The track next to the path on 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 sixteen or seventeen feet north of the train from which he claims the brake-shoe 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 at 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 thirteen 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 two hundred 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 seventeen 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 brake-shoe 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 twenty minutes thereafter, went back to the scene of the accident and found a piece of a brake-shoe about at the place where he saw Carr stagger and threw 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 the accident about an hour and a half thereafter, and states that she found this brake-shoe 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 Pacific, Missouri, before it reached St. Louis; that it was in good condition, and no brake-shoes were missing; that immediately upon its arrival in St. Louis that morning it was thoroughly inspected and no brake-shoes were found missing therefrom; that shortly after this regular inspection was made at St. Louis, a message was received...
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