Coonce v. Missouri Pac. R. Co.
Decision Date | 16 July 1962 |
Docket Number | No. 2,No. 48937,48937,2 |
Citation | 358 S.W.2d 852 |
Parties | W. C. COONCE, Appellant-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Respondent-Appellant |
Court | Missouri Supreme Court |
Ralph R. Bloodworth, Bloodworth & Bloodworth, Poplar Bluff, for W. C. coonce.
George W. Holmes, Mark M. Hennelly, Allen D. Churchill, St. Louis, for Missouri Pac. R. Co.
BOHLING, Commissioner.
W. C. Coonce recovered a verdict and judgment of $4,500 for personal injuries sustained when struck by a train of the Missouri Pacific Railroad Company, a corporation. In due course each party has appealed. Plaintiff contends that the verdict and judgment is grossly inadequate and seeks a new trial on the issue of damages alone. Defendant contends plaintiff failed to make a case and claims error in the overruling of its after-trial motion for judgment in accordance with its motion for a directed verdict at the close of all the evidence.
This case is here upon transfer from the Springfield Court of Appeals. See 347 S.W.2d 242. Plaintiff sued for $100,000 damages and recovered $4,500. Plaintiff was severely injured. He appeals on the ground the judgment is inadequate and, absent exceptional circumstances, the amount in dispute is the difference between the amount prayed for and the amount of the judgment in the trial court, as stated by the Court of Appeals. The appeals were properly transferred here.
Plaintiff was injured on defendant's 'Cat Branch' line, upon which trains move north past the station in Poplar Bluff, Missouri, and thence eastwardly, cross the Cat Branch bridge over the Black River about 600 feet east of the station and, about three-fourths of a mile farther east, cross a levee.
Plaintiff, 52 years old, owned and, with his wife, lived on twenty acres of land about five miles east of Poplar Bluff and a quarter of a mile south of defendant's tracks. He came to Poplar Bluff about noon of May 10, 1958. He loafed around, and that evening proceeded to defendant's station until he came to the Cat Branch track and started walking on or alongside the track toward his home. He walked in the dark, crossed the Black River bridge, and arrived at the levee 'after 8:30 p. m.' He adduced evidence that the night was clear, there was no fog or rain. He testified there were no lights on the track or around where he was. Defendant's track is straight and level for the three-fourths of a mile between the bridge and the levee. He stated: 'The levee runs around Poplar Bluff.' The levee there extends north and south. Plaintiff did not know when the trains ran. He was tired, and 'thought I would rest a little bit and go home.' He sat down, facing north, on the south rail of the track about fifteen or twenty feet west of the levee ditch, with his feet between the rails, folded his legs, put his arms across his legs, his head on his arms, and went to sleep. He next remembered being dragged along the railroad track, could feel his feet dragging and hitting rocks, and then next remembered being in the hospital. According to all the testimony, plaintiff was south of the tracks and east of the levee after the accident, plaintiff's witnesses putting him 30 to 40 feet east and defendant's witnesses putting him 55 feet east of the levee.
Plaintiff read the deposition of Lovell Miller, the engineer of defendant's train. The train was not quite a mile long, had four Diesel units pulling 111 cars, 105 of which were loaded. It was dark, and the weather was foggy, kind of a misty fog, not raining. He had gradually increased the speed of the train to about 28 m. p. h. when he first saw what looked like a man 'hunkered down' on the rail about 150 to 200 feet ahead. He immediately applied the air brakes, full power, sounded short blasts of the whistle and rang the engine bell. Plaintiff never moved. The train came to a complete stop in 927 feet. The equipment on the train, including its headlight, was in good condition.
Plaintiff's witness Robert L. Losh, a retired Missouri Pacific engineer, who had operated and was familiar with defendant's Diesel engines and their headlights in use on May 10, 1958, testified that such a Diesel headlight in good condition would light up the track on a clear night and reveal a man sitting in the position plaintiff was sitting 1200 to 1500 feet ahead, regardless of the color of the clothes the man was wearing.
Plaintiff's counsel judicially admitted that plaintiff was contributorily negligent as a matter of law, and submitted plaintiff's case on defendant's duty to have timely stopped its train under the humanitarian doctrine.
Plaintiff alleged in his petition, among other things, that he 'was sitting along and upon the defendant's railroad tracks at a point east of Poplar Bluff, Missouri, at a place where the general public usually and habitually walk in traveling to and from the Morrocco-Providence Community to the City of Poplar Bluff, Missouri.' (Italics supplied.)
Plaintiff predicated a verdict upon findings to the effect, so far as material, 'that the railroad track both east and for one-half mile west of the point where plaintiff was struck was at that time frequently used, and had for a long time prior thereto been frequently used by pedestrians with the knowledge of the defendant, its servants, and employees, as a passway leading to and from the city of Poplar Bluff' and, if so, then it was the duty of defendant's trainmen 'to exercise ordinary care to keep a lookout for persons on said track'; and further findings that plaintiff, 'asleep and oblivious' of defendant's approaching train 'while sitting on defendant's track after dark became in imminent peril of being struck by defendant's train'; that defendant's employees 'under the weather conditions then and there prevailing and by use of the train headlight then and there in operation saw, or by the exercise of ordinary care could have seen the plaintiff in such position of imminent peril' and thereafter, under the humanitarian doctrine, could have but did not stop said train and avoid injuring plaintiff.
Plaintiff's presentation here is on the theory defendant was not entitled to expect a clear track at the places specified by reason of the use of its track by pedestrians as a passway to and from Poplar Bluff for so long a time and so frequently prior to plaintiff's injury as to impose a duty upon defendant to exercise ordinary care to look out for and discover persons upon its said track. Plaintiff's counsel stated in argument here that if defendant did not owe plaintiff the duty to look out for him, that is, to discover his peril, plaintiff failed to make a case.
A railroad track is private property and the railroad generally has the exclusive right to the use of its tracks except at public crossings or in certain situations at other places where it has actual or constructive notice of the habitual use of its tracks by the public. Hoops v. Thompson, 357 Mo. 1160, 212 S.W.2d 730, 731; and see Isabel v. Hannibal & St. J. Rd. Co., 60 Mo. 475, 482 (cited by plaintiff). As stated in plaintiff's case of Rice v. Jefferson City Bridge & Transit Co., Mo., 216 S.W. 746, 752 ( ), the railroad's knowledge of public user is not generally established by direct evidence, 'but must be inferred, if they exist, from other facts, as, for example, the long acquiescence of the company in the open, known, free, continuous, and extensive use of its tracks by the public as a footway.' At places where the railroad has no right to expect a clear track its duty is to exercise ordinary care to maintain a lookout for persons upon the track; and at all other places there is no duty on the trainmen to act until they actually see a person, a trespasser, in danger. The Hoops case, supra, and cases cited; Frye v. St. Louis, I. M. & S. Ry. Co., 200 Mo. 377, 98 S.W. 566, 574, 8 L.R.A., N.S., 1069; Barney v. Hannibal & St. J. R. Co., 126 Mo. 372, 382(I), 28 S.W. 1069, 1071(1), 26 L.R.A. 847.
Peach Street, a graveled east-west street, is about 300 feet north of and parallels defendant's tracks. We understand Pine Street, on which is located U. S. Highway 60, is a block north of Peach Street. There is a house on Peach Street at the levee and some residences between Peach Street and Pine Street.
Plaintiff's evidence established that no road crossed the railroad where it passed over the levee and that automobiles could not cross over the rails there. Plaintiff testified that in this area there were elm bushes, bushes that grow on wet ground. Plaintiff's exhibits are to the same effect. There are no business establishments or industries in this vicinity. The Gamblin Lumber Company is a quarter of a mile from there.
Coroner Grover Greer drove his ambulance to the scene of the accident. Someone got in the ambulance at Peach Street and showed him how to get around. He didn't have trouble getting in with his ambulance, but described the road as a little dim, a 'pretty twisted' road, through some rough area, up to the levee. He drove up on the north side of the track and turned around, because an automobile couldn't cross the railroad tracks. He testified he had been 'through there a few times' and 'quite a few people' walked on the track and people used it on May 10, 1958. His only testimonial qualification as to people using the track on May 10, 1958, shown of record was his presence at the scene after the accident to take plaintiff to the hospital. He stated that he was 70 years old and it had been 'some fifty years' since he had walked this track while a boy working at a mill then in that area. He had not used it in recent years.
Clarence Pierce Circuit Clerk of Butler County, testified his farm was east of the levee and north of where the railroad crosses the levee. He testified that the road from Peach Street down to the levee and railroad 'was used quite often by a...
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