Chamberlain v. Missouri Pacific Railway Co.

• Decision Date: 17 March 1896
• Citation: 33 S.W. 437,133 Mo. 587
• Parties: Chamberlain v. Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

33 S.W. 437

133 Mo. 587

Chamberlain v. Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

March 17, 1896

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

Robinson & Carkener for appellant.

(1) The trial court should have directed a verdict for the defendant. The accident was caused, not by any negligence on the part of the defendant, but by the grossest sort of negligence on the part of plaintiff's husband. It occurred in the country not within the corporate limits of a populous city, nor at a public crossing, and the deceased being a trespasser on defendant's track, the defendant's employees owed to him no duty except not to wantonly injure him. Under the circumstances of the case they were not bound to anticipate his presence on the track, or to be on the lookout for him. Isabel v. Railroad, 60 Mo. 475; Maher v Railroad, 64 Mo. 267; Harlan v. Railroad, 64 Mo. 480; Harlan v. Railroad, 65 Mo. 22; Zimmerman v. Railroad, 71 Mo. 476; Yarnall v Railroad, 75 Mo. 575; Rine v. Railroad, 88 Mo. 392; Dunkman v. Railroad, 95 Mo. 232; Williams v. Railroad, 96 Mo. 275; Barker v. Railroad, 98 Mo. 50; Shaw v. Railroad, 104 Mo. 648; Dlauhi v. Railroad, 105 Mo. 645; Hyde v. Railroad, 110 Mo. 275; Spicer v. Railroad, 45 Am. and Eng. R. R. Cases, 28; Railroad v. Black, 89 Ala. 313; McAdow v. Railroad, 105 N.C. 140; Meredith v. Railroad, 108 N.C. 616; Esrey v. Railroad, 88 Cal. 399; Candelaria v. Railroad, 48 Am. and Eng. R. R. Cases, 565; Tennis v. Railroad, 45 Kan. 503; Railroad v. Adams, 33 Kan. 427; Johnson v. Truesdale, 46 Minn. 345; Woodruff v. Railroad, 47 F. 689. (2) The court committed error in giving plaintiff's instruction number 1. It made an issue of and gave undue prominence to immaterial matters, amounting to a comment upon the evidence calculated to operate prejudicially to the defendant; and submitted to the jury the determination of issues which there was no testimony tending to prove. (3) The court committed error in interlining defendant's instruction number 2 by inserting therein the words, "or by the exercise of ordinary care might have seen him in a position of imminent danger." There was not a particle of evidence tending to show a lack of care on the part of defendant's engineer, and said instruction erroneously assumes the fact that the deceased was in a position of imminent peril when he might have been seen by the defendant's engineer, in the exercise of ordinary care. (4) The court committed error in interlining defendant's instruction number 3. The engineer had a right to assume that the deceased was in possession of his mental faculties and would get off the track in time to avoid danger, until something occurred to indicate to the contrary. Boyd v. Railroad, 105 Mo. 371; Moody v. Railroad, 68 Mo. 470; Maloy v. Railroad, 84 Mo. 270; Railroad v. Black, 89 Ala. 313. (5) The court committed error in excluding evidence as to the habits of persons while walking on railroad tracks. If there was any evidence justifying the court in sending this case to the jury, this evidence was very important and its exclusion constitutes reversible error.

Kinley & Kinley with W. D. Jameson for respondent.

(1) The plaintiff could not be affected by the custom of other people at other parts of the road. Beside the question was not proper because it was leading and assumed that the persons on the track heard the alarm, and the engineer knew it. If the question was framed as a hypothetical one, the same was not proper, for its scope was much wider than the facts in the case on trial. In the case at bar, there was no evidence that deceased heard the alarm, in fact, the evidence shows that deceased did not hear the alarm. Railroad v. Clark, 108 Ill. 113; Railroad v. Richardson, 91 U.S. 454. (2) If any error was committed in giving plaintiff's instruction number 1, it was not committed against the defendant. It may have required the jury to find more facts before rendering a verdict for plaintiff, than were absolutely necessary, yet this is only an additional burden imposed upon the plaintiff. The instruction submitted the questions involved, that made or would make defendant liable for running a man down and killing him, under the laws of this state. This instruction is the law of this state, when the conditions exist that are called for and which were shown by the evidence of this case. The rule is the one that for years has been recognized by this court in a case where the track runs through populous neighborhoods, or for any other reason a clear track may not be reasonably expected by the servants in charge of the train. Guenther v. Railroad, 95 Mo. 286; Guenther v. Railroad, 108 Mo. 18; Williams v. Railroad, 96 Mo. 275; O'Mellia v. Railroad, 115 Mo. 221; Frick v. Railroad, 75 Mo. 602; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 607; Hicks v. Railroad, 65 Mo. 36; Maher v. Railroad, 64 Mo. 267. (3) The amendment made by the court to the second instruction of defendant, was the law of this state. In populous neighborhoods, or places on the track where trespassers may be reasonably expected, the rule of diligence is enlarged, and unless the engineer used reasonable care to avoid the accident after discovery of plaintiff's husband on the track, or by the exercise of ordinary care might have seen him in a position of imminent danger, etc., in time to have avoided the accident and failed to exercise such care the company is liable. In such places as deceased was on the track, the law of this state does not permit employees to run trains without the exercise of ordinary care, and then to shield their employer from liability by saying, "I did all I could to avert the injury after I saw the deceased." The rule is too narrow. Huelsekamp v. Railroad, 37 Mo. 553; Morrissey v. Ferry Co., 43 Mo. 382; Brown v. Railroad, 50 Mo. 461; Isabel v. Railroad, 60 Mo. 475. (4) The instruction refused on behalf of the defendant was commenting on the evidence and advising the jury what its probative force and effect was; hence it was properly refused. It was also properly refused as there was evidence of negligence on the part of defendant; hence the case should have gone to the jury. The unbroken rule of decisions of this state is, when there is any evidence to sustain the issues, the case is properly submitted to the jury. Norton v. Ittner, 56 Mo. 391; O'Mellia v. Railroad, 115 Mo. 221; Mauerman v. Siemert, 71 Mo. 104; Nagel v. Railroad, 75 Mo. 665; Brown v. Railroad, 50 Mo, 466.

Division Two: Gantt, P. J. In Banc: Gantt, J. Brace, C. J., Macfarlane and Burgess, JJ., concur; Barclay, Sherwood, and Robinson, JJ., dissent. Brace, C. J., Macfarlane, and Burgess, JJ., concurring with Gantt, J., therein. Barclay, Sherwood, and Robinson, JJ. dissenting.

OPINION

In Banc.

DIVISIN TWO.

Gantt P. J.

This is an appeal from a judgment of the circuit court of Jackson county, in favor of Olive Chamberlain, the widow of Godfrey Chamberlain who was killed by a train on the Missouri Pacific Railway Company's track, in the east bottoms near Kansas City on September 2, 1892.

The action is grounded upon the negligence of the defendant's servants in running its train over said Godfrey Chamberlain without warning after they discovered he was unconscious of the approach of said train. Plea of contributory negligence and denial of negligence of the trainmen. A jury was duly impaneled. The facts developed were few and exceedingly simple.

Where the tracks of the Missouri Pacific pass the eastern boundary line of Kansas City, they are prolonged through what is known in all that section as the east bottoms for two or more miles. These bottoms contain many large factories, industries that give employment to large numbers of laborers, such as grain elevators, factories, and mills, and on account of their proximity to the city and their great fertility, these bottoms are largely devoted to market gardens, and truck patches, and the gardeners and their laborers reside along this track.

About the point where the plaintiff's husband was killed a private road crossing had been opened across defendant's tracks by the defendant and planked for the convenience of passers-by.

As the defendant's tracks leave the city limits coming east they make a curve and from that curve east they are almost straight and very level and a man can readily be seen from the eastern part of the curve a distance of two thousand feet east.

The testimony in behalf of plaintiff tended strongly to prove that for a number of years prior to this unfortunate killing, a good many workmen and pedestrians were in the habit of using these tracks of defendant in going to and from their work and more particularly in the early morning from 6 to 7.

The engineer in charge when the plaintiff's husband was killed, was a witness for the defendant at the trial and was asked, on cross-examination: "State if, in your testimony before the coroner, you did not state 'I hardly ever go along the road, this track where this man was killed, but what there is somebody walking along the track. It is traveled a good deal by people?'" Answer. "I could not say whether I did or not. I don't remember. I was running extra on passenger trains. * * * I see men on most every track on any railroad. * * * There were elevators in the east bottoms and there was a sewer pipe factory west of where the accident occurred. * * * I have seen people on the tracks more than once and probably more than three times. I am aware that people walk on the track there and everywhere else."

W. C Hutto, a witness for plaintiff, testified that he lived in the east bottoms and worked at the sewer pipe factory. Went to work about 7 every...