Crossno v. Terminal Railroad Assn.

• Decision Date: 24 August 1933
• Docket Number: No. 31781.,31781.
• Citation: 62 S.W.2d 1092
• Parties: SAM CROSSNO v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
• Court: Missouri Supreme Court

62 S.W.2d 1092

SAM CROSSNO v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.

No. 31781.

Supreme Court of Missouri, Division One.

August 24, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Albert D. Nortoni, Judge.

REVERSED.

T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.

(1) The opinion of the former appeal is the law of the case on subsequent appeals, unless the pleadings have been amended so as to introduce new issues; or, unless the evidence on the retrial is substantially different; or, unless the opinion on the former appeal was manifestly erroneous because of a mistake as to the law or the evidence; or, because an injustice has been done. Davidson v. Railroad, 301 Mo. 85, 256 S.W. 169; Mangold v. Bacon, 237 Mo. 525, 141 S.W. 650; Monroe v. Railroad, 297 Mo. 654; Bagnell v. Railroad, 242 Mo. 21; Seibert v. Harden, 319 Mo. 1112, 8 S.W. (2d) 905; Nothstine v. Feldman, 320 Mo. 512, 8 S.W. (2d) 912 (2) The evidence shows that plaintiff was a trespasser on the railroad track. The record is without evidence that any person, either the public or an employee, other than plaintiff on this one occasion in question, ever before had crossed the railroad track at the place plaintiff said the car collided with him. Plaintiff was injured at a place where defendant had the right to expect a clear track. Therefore, the only duty that defendant owed plaintiff was not willfully or wantonly to injure him after discovering him. The court should have instructed the jury to find for defendant. Hall v. Railroad, 219 Mo. 553, 118 S.W. 56; Hufft v. Railroad, 222 Mo. 286, 121 S.W. 120; Frye v. Railroad, 200 Mo. 377, 98 S.W. 566; Sorenson v. Railroad, 212 N.W. 273; Arkansas Short Line v. Bellars, 2 S.W. (2d) 683; Pryotely v. Railroad, 28 Fed. (2d) 868; Helring v. Railroad, 54 Fed. (2d) 493; Murphy v. Murphy, 162 S.E. 901; Railroad Co. v. Godfrey, 71 Ill. 500; Cunningham v. Railroad Co., 260 Ill. 589; Railroad Co. v. O'Connor, 189 Ill. 559; Sary v. Railroad, 248 Ill. App. 417; certiorari denied, 251 Ill. App. XLIII, by Supreme Court of Illinois, (a) The evidence tends to show that employees of defendant traversed the railroad yards in going to and returning from their work, using a beaten path to the north of said lead track, but evidence as to the duration or extent of the user was uncertain and indefinite, and no evidence obtains that any person, other than plaintiff, used the beaten path in the nighttime. Even so, plaintiff was not injured while walking along said beaten path, but he was injured while returning to said beaten pathway, and crossing the switch track, after having left the beaten pathway for his own convenience. He was not hurt at a public crossing, or on a portion of the track habitually used by the public. In fact, there was no evidence of a prior user of that portion of the track where plaintiff was hurt. Hall v. Railroad, 219 Mo. 587, 118 S.W. 56. (b) As no user of the place where plaintiff was hurt was shown, plaintiff was a pure trespasser, and defendant's only duty was to use reasonable care not to injure him after the discovery of his danger or peril. Hufft v. Railroad, 222 Mo. 302, 121 S.W. 120; Hall v. Railroad, 219 Mo. 586, 118 S.W. 56, (c) Even if the user of the beaten path to the north of the track was sufficient to show a prescriptive right, that is an open, known, free, continuous and extensive use by the public, which we doubt, yet there was not a semblance of evidence that the place where plaintiff was hurt was ever before used by anyone. The use must be confined to the limits proved. Frye v. Railroad, 200 Mo. 401, 98 S.W. 566; 52 C.J. 524-543, sec. 2112. (d) As plaintiff was a trespasser, he cannot complain of the absence of a light on the foremost car. The light rule was not intended for the protection of trespassers. Frye v. Railroad, 200 Mo. 407, 98 S.W. 566; Railroad Co. v. O'Connor, 189 Ill. 559; Sary v. Railroad, 248 Ill. App. 417, certiorari denied, 251 Ill. App. XLIII, by Illinois Supreme Court.

Louis E. Miller and John F. Gibbons for respondent.

(1) The opinion of the former appeal is the law of the present case. Since the pleadings have not been amended, no new evidence has been introduced, the evidence on the retrial is substantially the same, if not identical; the opinion on the former appeal properly applied and declared the law and no injustice has been done. Crossno v. Terminal Railroad Assn., 41 S.W. (2d) 796; State of Kansas ex rel. Winkle Terra Cotta Co. v. United States F. & G. Co., 40 S.W. (2d) 1052; Bradley v. Becker, 11 S.W. (2d) 10; Davidson v. St. Louis-S.F. Ry. Co., 256 S.W. 169; Seibert v. Harden, 8 S.W. (2d) 908; North St. L. Gymnastic Soc. v. Hagerman, 232 Mo. 693; Mangold v. Bacon, 237 Mo. 496; Benton v. St. Louis, 248 Mo. 102; McMenamy v. Kampelmann, 217 S.W. 99; Coleman v. Northwestern Mut. Life Ins. Co., 233 S.W. 188; Scott v. Realty & Improvement Co., 255 Mo. 102; Armor v. Frey, 253 Mo. 464. (2) Plaintiff was not a trespasser on the railroad track. He was at a point on a switch track between two well-defined pathways in a part of a yard through which employees of the defendant and other railroad companies customarily walked and in a foreign yard where the defendant had no right to expect a clear track into which it was backing a train at night, at a place where persons were likely to be at all times, without having a man on the advancing end of the train and without a light on the end car and without a warning or signal of any kind, contrary to the established practice and defendant's own rules. Savage v. Ry. Co., 40 S.W. (2d) 628; Crossno v. Terminal Railroad Assn., 41 S.W. (2d) 796; Beard v. Mo. Pac. Ry. Co., 272 Mo. 157; Kippenbrock v. Railroad Co., 270 Mo. 479; Cotner v. Railroad Co., 220 Mo. 284; Kinney v. Met. St. Ry. Co., 261 Mo. 111; Becke v. Mo. Pac. Ry. Co., 102 Mo. 550; Le May v. Mo. Pac. Ry. Co., 105 Mo. 370; Willi v. United Rys. Co., 205 Mo. App. 287. (a) Since defendant backed its train around a curve in the nighttime upon a track in a foreign yard, the vicinity being dark, in violation of its own rules and customs, as well as the customs of other railroads and of the yard into which it was proceeding, without a signal or warning of any kind and without a man or light on the advancing end of the cars, and where persons were likely to be at all times, it had no right to expect a clear track, and it was, therefore, incumbent upon the defendant to use every reasonable precaution after entering upon the switch track in the "Q" yards to avoid injuring persons walking upon or near the switch track. Savage v. Ry. Co., 40 S.W. (2d) 628; Crossno v. Terminal Railroad Assn., 41 S.W. (2d) 796; Beard v. Mo. Pac. Ry. Co., 272 Mo. 142; Kippenbrock v. Railroad Co., 270 Mo. 479; Kinney v. Met. St. Ry. Co., 261 Mo. 111; Kerr v. Bush, 198 Mo. App. 613; O'Connor v. Mo. Pac. Ry. Co., 94 Mo. 158; Church v. C. & A. Ry. Co., 119 Mo. 203; Lueders v. Railroad Co., 253 Mo. 116; McQuitty v. Kansas City Ry. Co., 196 Mo. App. 450; Stephens v. Railroad Co., 199 S.W. 274; Aleckson v. St. Louis-S.F. Ry. Co., 213 S.W. 897.

FRANK, P.J.

Action by respondent, plaintiff below, to recover damages for alleged personal injuries. Plaintiff recovered judgment and defendant appealed.

This case is here on a second appeal. At the first trial plaintiff recovered judgment, and on appeal to this court that judgment was reversed and the cause remanded for error in refusing to give certain withdrawal instructions requested by defendant. The opinion in the former case is reported in 328 Mo. 826, 41 S.W. (2d) 796, to which we refer for a full statement of the facts. We will, however, state facts sufficient to an understanding of the points discussed.

Plaintiff was in the employ of defendant. Terminal Railroad Association of St. Louis, as a switchman. He was injured in the Chicago, Burlington and Quincy Railroad yards, known in the record as the "Q" yards. On February 5, 1927, at about eleven o'clock P.M., the plaintiff was struck and injured by a string of cars which the defendant was backing through the "Q" yards. These yards are located in East St. Louis, Illinois. Front Street is a public thoroughfare of East St. Louis running in a general north and south direction. The street is occupied by a number of railroad tracks and is also used for ordinary traffic. The "Q" yards are located along the east side of Front Street. The tracks in this yard run in a general east and west direction. Plaintiff was injured in the "Q" yard some distance east of Front Street. The track on which plaintiff was injured is referred to in the record as the "Q connection." This track extends north and south on Front Street some distance north of the "Q" depot where it makes a broad curve to the east and enters the "Q" yard from the west and runs east and west through the yards. There was a well-defined and much-used footpath north of and parallel to this track.

At the date of plaintiff's injuries, he was employed by defendant as a switchman in Wiggins No. 2 yard, working on a night shift which went on duty at eleven o'clock P.M. He was required to report for work at the yard office. This switch yard was located at or near the north end of Front Street. Plaintiff's evidence is to the effect that on the night of February 5, 1927, he left his home in East St. Louis to report for work, and that he walked west along the path on the north side of the "Q connection track," and, when he was yet some considerable distance east of Front Street, he crossed the "Q connection track" to the south and into a small depression for the purpose of answering a call of nature. After answering the call of nature, he returned northward intending to recross the track and resume his westward course along the path. As he neared the track, and before attempting to cross it, he looked to the east and to the west. The night was dark and he neither saw nor heard the approaching train. After...