Carrier v. Missouri Pac. Ry. Co.

• Decision Date: 19 May 1903
• Citation: 74 S.W. 1002,175 Mo. 470
• Court: Missouri Supreme Court
• Parties: CARRIER v. MISSOURI PAC. RY. CO.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 1002

175 Mo. 470

CARRIER v. MISSOURI PAC. RY. CO.^*

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

RAILROADS — TRESPASSER — CONTRIBUTORY NEGLIGENCE — WANTON NEGLIGENCE — EVIDENCE — COSTS — POOR PERSON — DISCRETION OF COURT.

1. Where plaintiff has brought suit, and, after the issues have been made up and costs have accumulated, has taken a nonsuit, it is in the discretion of the court whether it will restrain her from bringing another action on the same cause without first paying the accrued costs in the original action.

2. Rev. St. 1899, § 1542, provides that in all civil cases commenced by a nonresident the plaintiff "shall," before the institution of the suit, file a cost bond, and that the court "may" dismiss any action so commenced by a nonresident without the filing of the bond. Section 1545 provides that the court "may, in its discretion," permit a plaintiff who is unable to pay the costs to prosecute his action as a poor person, etc. Held not error, after requiring a nonresident plaintiff to give security for costs, to permit her to sue as a poor person.

3. Deceased was struck by a train while trespassing on the right of way, and killed. The dirt road running alongside the right of way was muddy, and he was walking either on the path, a few feet wide, running between the track and a ditch, or on the track. The accident occurred in the daytime, and, if deceased had looked behind him, he could have seen the train for a distance of 400 yards. The track was fenced, and there was no crossing at the place where deceased was found. Deceased was hard of hearing, but could hear loud sharp noises. No signal of any kind was given by the train crew, but the train, moving at usual speed, on schedule time, made a heavy rumbling noise. Held, that deceased was guilty of contributory negligence.

4. Deceased was struck by a train while trespassing on the right of way, and killed. He was in plain view for 400 yards before the accident, but there was no evidence that any member of the train crew saw him. There was no crossing where the accident occurred, and only one house in the vicinity, and the right of way was fenced on each side. The train was run on schedule time, at the usual speed, and on an upgrade, so as to make a heavy rumbling noise. No signals of any kind were given as a warning by the crew. Held that, they being under no legal duty to be on the watch for trespassers, they were not guilty of such wanton negligence as to justify a verdict in spite of decedent's contributory negligence.

5. If the deceased was seen by the crew within the line of danger, they had a right to presume that he would be on the lookout for the train, and would step out of its way as it approached him.

Appeal from Circuit Court, Johnson County; Samuel Davis, Special Judge.

Action by Susan P. Carrier against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. T. Railey, for appellant. O. L. Houts, for respondent.

BURGESS, J.

This is an action by plaintiff, the widow of T. E. Carrier, deceased, to recover from defendant $5,000 damages for negligently and carelessly killing her husband on the 15th day of January, 1899.

The petition alleges that on said date defendant was operating a line of railway through the city of Warrensburg, county of Johnson, and that on said 15th day of January, 1899, and for a long time prior thereto, defendant's railway and track in said city and extending for a long distance west thereof was and had been used by persons and the public as a traveled way; that on said 15th day of January the said T. E. Carrier was upon defendant's track and right of way west of the city limits of said city, and where the said track and right of way was used as a traveled way as aforesaid, walking and traveling to the said city, and an engine and train of cars owned and operated by the defendant, going east, and called train "No. 2," approached the said T. E. Carrier from the rear along said track, and he became and was in great danger and imminent peril of being run over, killed, and injured by said train; that defendant, its officers, servants, agents, and employés running, conducting, operating, and managing said train, saw the said T. E. Carrier and his said peril and danger, and became aware thereof in time by the exercise of ordinary care to have stopped said train and averted any injury to him, and by the exercise of ordinary care could have seen him and become aware of his said peril and danger in time to have stopped said train and prevented his injury; that, after seeing the said T. E. Carrier, and becoming aware of his said peril and danger, and after they could have seen him and become aware of his said peril and danger by the exercise of ordinary care as aforesaid, the said defendant, its said officers, servants, agents, and employés, negligently and carelessly failed to sound the usual and ordinary danger signals, and failed to sound them in time to avert the injury to said T. E. Carrier, and negligently and carelessly neglected to use air brakes and other appliances for stopping said train, and negligently failed to use the appliances at hand and provided for putting said train under control, but negligently and carelessly ran said engine and train upon and over the said T. E. Carrier, and injured and killed him at the time and place aforesaid, to the damage of the plaintiff in the sum of $5,000, for which she prays judgment, with costs. The defenses were general denial, contributory negligence in illegally, wrongfully, and without authority of law, while deaf and dumb, going upon defendant's right of way, and while not paying any attention to the operation and running of defendant's train, and by his negligence and carelessness, and without fault of the defendant, going upon its track, and receiving the injuries complained of; that defendant had no knowledge of the fact that said deceased was either deaf or dumb or on said premises. Plaintiff replied, admitting that deceased, T. E. Carrier, went upon defendant's right of way, stepped near its track; that he also stepped and went upon defendant's track; and stating that he received the injuries complained of when near or upon said track, and admitting that defendant did not know the deceased was deaf or dumb, and averring that he was neither deaf nor dumb. All other allegations in the answer are denied. The trial resulted in a verdict and judgment in favor of plaintiff for $5,000, from which defendant appeals.

It appears from the record that plaintiff brought suit to the June term, 1899, of the circuit court of Johnson county upon this same cause of action, and that, after that issue had been made up and a large amount of costs had accumulated, and the case brought to trial before the court and a jury, plaintiff took a nonsuit, and thereafter instituted this suit on the same cause of action, without having paid the cost, or any part of it, which accumulated in the former suit. After the institution of the suit at bar defendant filed its motion to restrain plaintiff from the prosecution of this suit until the costs of the former suit were paid, and to require her to give security for the costs of this suit. In the meantime plaintiff had become, and was at the time of the institution of this suit, a nonresident of this state, and a resident of the state of Kansas. The motion to restrain, or that part of the motion that asked the court to restrain, the plaintiff from prosecuting this action, was overruled, that part of the motion to require plaintiff to give security for cost sustained, and plaintiff allowed to sue as a poor person.

On Sunday morning, January 15, 1899, T. E. Carrier started to walk from Centerview, which is six miles west of Warrensburg, Johnson county, on the line of the Missouri Pacific Railway, to Warrensburg. The dirt road being muddy, he started out on the railroad track, and when nearing Warrensburg he was struck and fatally injured by one of defendant's regular passenger trains, which arrived at that place from the west between 11 and 12 o'clock on that day. A short time after the train passed by, deceased was found lying a short distance south of the south rail of the track, and about 15 to 20 steps west of the corporate limits of the city of Warrensburg. He was lying, when found, on the south side of the track, his feet south, and his head about six inches from the track. The left side of his skull was mashed in, and his shoulder hanging limp. He was bleeding. He was alive when found, but died the same day. The track for 400 yards west of where deceased was found is comparatively straight, and there was at the time of the accident nothing to obstruct the view of the engineer in charge of the train for that distance up to where Carrier was found, and, if he had looked, could have seen the train, and, if the engineer had been looking, he could have seen Carrier. The train was moving at the usual speed. Deceased was a mute, and hard of hearing, but could hear loud sharp noises. When last seen before the accident, he was within a mile of the corporate limits of Warrensburg, and going in that direction, walking between the rails of defendant's track. There was no crossing at the place where deceased was found. There were no signals of any kind given by the train crew as a warning to the deceased. There was a ditch on south side of railroad track from where deceased was found, running west parallel with said railroad track for a distance of 180 feet to a culvert. Between the end of the ties and the north edge of this ditch, from where deceased was lying, and west towards said culvert, there was a pathway from 3½ to 4 feet and 8 inches in width outside of the ties. The testimony is conflicting as to whether there was any water in the ditch where deceased was lying. Those witnesses who testified that the ditch contained water described it as only six or eight...