Cotner v. St. Louis & S. F. R. Co.

• Decision Date: 30 March 1909
• Citation: 220 Mo. 284,119 S.W. 610
• Parties: COTNER v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Supreme Court

119 S.W. 610

220 Mo. 284

COTNER v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

Rehearing Denied May 18, 1909.

1. PLEADING (§ 250)—AMENDMENT—PRAYER FOR RELIEF.

An amendment of the petition in a personal injury case after the jury had been impaneled and before the evidence was heard by striking out a prayer for special damages and adding the amount so claimed to the sum claimed as general damages was proper; the facts stated in the two petitions being identical.

2. RAILROADS (§ 400)—INJURIES TO PERSON ON TRACK—QUESTION FOR JURY.

In an action against a railroad company by one struck by a train while walking on the track, whether he knew, when he started to walk thereon, of the approach of a train which had no headlight and which had whistled, or whether he honestly believed that the whistle was from a gin near by, held for the jury under the evidence.

3. RAILROADS (§ 370)—DUTY TOWARDS PERSONS USING TRACK AS PASSWAY.

Where a railroad track near a town was habitually used, with the knowledge and acquiescence of the company, as a passway to and from the town, it was the duty of employés in charge of a train to keep a lookout at that place for persons on the track, and if an engineer saw or knew that a person on the track was in a dangerous position, or by reasonable care could have known his dangerous position in time to have avoided injuring him and failed to do so, the company would be liable.

4. RAILROADS (§ 362)—DUTY TOWARDS PERSONS USING TRACK AS PASSWAY — HEADLIGHT.

A railroad company charged with the duty to keep a lookout for persons on its track through a village, where the track had never been fenced and had always been used as a passway both night and day without the company's objection, owes such persons the duty, when running a train over the track at night, to have a lighted headlight on the engine.

5. TRIAL (§ 251)—INSTRUCTIONS — REFUSAL OF REQUESTS — ISSUE NOT IN CASE.

In an action against a railroad company for injuries from being struck by an engine, where no right of recovery was based upon the excessive speed of the train, it was not error to refuse to charge that the company was not negligent in running its train at any rate of speed.

6. RAILROADS (§ 401)—INJURIES TO PERSONS ON TRACK—INSTRUCTIONS—MODIFICATION.

In an action against a railroad company for injuries from being struck by an engine, a charge that if plaintiff was injured when intoxicated, and his intoxication was unknown to defendant's employés in charge of the train, his intoxication did not excuse the omission of the care required of a sober man, and if he failed because of his intoxication to exercise such care, or the care that one not intoxicated as he was would have exercised, and if he would have avoided the injury had he exercised such care, he could not recover, "even though you further find * * * defendant's employés in charge of the engine and train were negligent, * * *" was properly modified by omitting the quoted portion.

7. RAILROADS (§ 397)—INJURIES TO PERSON ON TRACK—ADMISSIBILITY OF EVIDENCE.

In an action against a railroad company for injuries from being struck by an engine, testimony of witnesses, who saw the engine almost immediately after the accident, that there was no headlight lighted was admissible, though they did not see the engine immediately before it struck plaintiff, at least to throw the burden upon defendant to show that the light had gone out after the accident and before witnesses saw the engine.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Personal injury action by J. W. Cotner against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans and Moses Whybark, for appellant. Duncan & Bragg, for respondent.

GANTT, P. J.

This is an action for damages from personal injuries alleged to have been caused by the negligence of the defendant, its agents, servants, and employés, commenced and tried in the circuit court of Pemiscot county. At the June term, 1905, the plaintiff filed an amended petition, in which he stated the incorporation of the defendant and then alleged: That on November 4, 1904, while he was walking northeastward on the railroad tracks of the defendant, within the village limits of the village of Steele, in Pemiscot county, Mo., an incorporated village, duly incorporated under the laws of Missouri, where the track was level and straight for a long distance, and where from the time of its construction pedestrians had been accustomed to use the same as a footpath by the forbearance and tacit consent of the defendant, plaintiff, by reason of the carelessness, negligence, and recklessness of defendant's agents, servants, and employés in charge of this train, was run over and injured; that after the defendant's agents, servants, and employés in charge of said train seeing or by the exercise of reasonable care and diligence, had they not been reckless in operating said train at a late hour in the nighttime, to wit, about 11 o'clock p. m., without a headlight lighted upon the front part of its engine or train of cars, could have seen, the dangerous position in which plaintiff was situated, and saw, or by reasonable care and diligence, if said train had not been recklessly operated by defendant's agents, servants, and employés in charge thereof, could have seen, the imminent peril in which plaintiff was placed, and that the plaintiff was unaware of the dangerous approach of said train, failed to sound the usual and ordinary signals in time to avert the injury herein complained of, and in fact did not at any time, before the injury to plaintiff, either ring a bell nor whistle or give any other signal by which the plaintiff might be warned of the near or dangerous approach of said train, and negligently failed to use the brakes and other appliances provided for the stopping of said train, made up as aforesaid, and negligently failed to use the appliances at hand for the putting of said train under control and stopping the same before it struck and injured plaintiff, but, on the contrary thereof, recklessly, negligently, and wantonly ran its engine and train of cars against, upon, and over plaintiff, thereby mashing his right foot and ankle, necessitating amputation of the right foot and leg, also wounding and bruising him upon the back and head, dislocating his left ankle, and giving to him other external and internal injuries, causing vomiting and passing of blood through his urine; that by reason of the injuries aforesaid plaintiff is permanently disabled to his damage in the sum of $15,000. And plaintiff further states that by reason of the aforesaid injuries he has suffered great distress in body and mind, pain and mental anguish, and has been caused to expend large sums of money for care and medical attention to the amount of $3,000. Therefore he prays judgment for $18,000.

At the same term the defendant filed its answer, admitting its incorporation, denying all the allegations in the petition, and further replied: That the plaintiff at the time he received his injuries voluntarily exposed himself to danger on the tracks of the defendant and was a trespasser and under the influence of alcoholic stimulants to the extent that he was in a drunken condition, and, if he was injured as alleged in the petition, such injuries were the result of his own carelessness, and not the carelessness of the defendant. The replication of the plaintiff was a general denial of the new matter set up in the answer. At the same term the cause was tried before a jury, and a verdict and judgment rendered for the plaintiff for $5,000. In due time the defendant filed his motion for a new trial, which was by the court overruled. After the jury were sworn, the plaintiff by leave of the court amended his petition by striking out the damages, to wit, $15,000 and $3,000 for special damages, and inserted in lieu thereof $18,000, as general damages, to which amendment the defendant excepted at the time.

The evidence on the part of the plaintiff tended to prove: That he lived a mile and a half from the village of Steele. That on November 4, 1904, he went to said village, and about 11 o'clock that night, while he was walking upon the track of the defendant in a northerly direction and about 100 feet from where the wagon road crosses the railroad, he was struck by a train of the defendant. Before going on the track he heard something like a train blowing down on the other side of the railroad crossing and stopped and looked down the track, but could see nothing, and then started on the track towards his residence and was knocked off. The track was straight for more than a mile, and there were no obstructions of this view. That he had only walked about 25 feet before he was struck. There was no signal given and no bell rung to give warning of the approach of the train. The engine struck him and knocked him down, and his left foot was thrown out of place, and his right leg and foot was mangled; the foot being cut off. His back and hips were badly mashed, and he was confined to his bed for four months. He testified that the track had been used for a footpath ever since he had lived in the neighborhood for about four years. All the sawmill crew for three mills used it as a footpath. Besides many others used it regularly. On cross-examination he said there was nothing but a rock road the way he was going. The night was cloudy, but no rain or snow. He had been in a restaurant and saloon before starting home and had taken three or four drinks and bought a pint of whisky. He was not intoxicated that evening, just felt good, and sang some. He heard a whistle, but did not see any light; thought it was a cotton gin whistle. He was not sitting down when struck, saw no one else on the track, and did not know the train was coming. He thought the train had passed, and could have seen it if its...