Dalton v. Missouri, Kansas & Texas Railway Company

• Decision Date: 15 February 1919
• Parties: GEORGE DALTON, by JAMES DALTON, His Next Friend, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al., Appellants
• Court: Missouri Supreme Court

208 S.W. 828

276 Mo. 663

GEORGE DALTON, by JAMES DALTON, His Next Friend, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al., Appellants

Supreme Court of Missouri

February 15, 1919

Appeal from Montgomery Circuit Court. -- Hon. James D. Barnett Judge.

Reversed and remanded.

Mahan Smith & Mahan, N. S. Brown and Jos. W. Jamison for appellants.

(1) Upon the physical facts, defendant's agents could not see George Dalton at the time of his injury, and all of plaintiff's evidence tending to show that he could be seen is contrary to natural law and should therefore be disregarded. Clarke v. Railroad, 242 Mo. 606; Kelsay v. Railroad, 129 Mo. 376; Nugent v Milling Co., 131 Mo. 253; Daniels v. Railroad, 177 Mo.App. 281. Plaintiff made Burns, appellant's engineer, a witness in his own behalf. Burns testified it was impossible for him to see Dalton, looking from the cab window from his engine on the bluff side, because of curves in the track; because his view was partially obstructed by a bunk car standing on a stub track close by; because of the varying heights of the cars in the train, and the further fact that the car on which Dalton was sitting was more than a quarter of a mile distant from his engine. No observation had been or was made by any other witness who testified on behalf of plaintiff from the same or a similar position from that occupied by Burns under similar circumstances and conditions, and plaintiff therefore offered no testimony sufficient in law that tended to contradict Burns's testimony, and plaintiff is bound by what he said. Burge v. Railroad, 244 Mo. 93; Armstrong v. Denver & R. F. Railroad Co., 203 S.W. 246; Hawkins v. Railroad, 135 Mo.App. 533. (2) Plaintiff was a willful trespasser. He was neither an invitee or licensee and the humanitarian doctrine cannot be invoked in his behalf. Papich v. Chicago, M. & St. P. Ry. Co., 167 N.W. 686. "It is the settled law, as to infants as well as adults, that if one is injured by going under cars which may be moved at any time, he must be dealt with as a trespasser." Thomas v. Railway, 93 Iowa 253; Bourrett v. Railway, 152 Iowa 582; Purcell v. Railroad, 117 Iowa 667. "Since no duty to the trespasser arises until he is actually seen, it follows of necessity no care is due him before his peril is known. On that theory the general rule has been worked out, that an owner of property trespased upon, is not liable for an injury resulting from the trespass merely because care might have successfully guarded against such injury." Papich v. C., M. & St. P. Ry., 167 N.W. 688. See Hounsell v. Smyth, 7 C. B. (N. S.) 731; Hargreaves v. Deacon, 25 Mich. 1; Gavin v. City, 97 Ill. 68; Bishop v. Railroad, 14 R. I. 318. "It follows that there was here no duty to give warning that the cars were about to be moved." Brackett v. Railway, 111 S.W. 710; Schmidt v. Railway, 181 F. 83; Pa. Railway v. Martin, 111 F. 586. "A railroad company owes no duty to trespassers in its yards, regardless of age, except that of not wantonly or recklessly injuring them after having discovered them to be in peril." Barney v. H. & St. J. Railroad Co., 126 Mo. 372; Ruschenburg v. Ry. Co., 109 Mo. 112; Curley v. Mo. Pac. Ry. Co., 98 Mo. 19; Wencker v. M. K. & T. Ry. Co., 169 Mo. 593. A "mere licensee" is one who is clothed with no right and to whom no invitation has been extended, but who is upon the premises of another by permission or acquiescence. Norfolk & W. Ry. Co. v. Denny, 106 Va. 383. No one can become such licensee on premises of a railroad company or on its trains while standing at a station without the consent of the company, either express or implied. Berry v. Mo. Pac. Ry. Co., 124 Mo. 223; Furey v. N. Y. Cent. H. R. Co., 67 N. J. L. 270. (3) George Dalton was a law breaker and a trespasser, and cannot recover in this case. Defendants' demurrer to the evidence should have been sustained, and instruction for verdict for the defendants given, and the court erred in failing to do so. Barney v. Railroad, 126 Mo. 391; Kelly v. Benas, 217 Mo. 12; Hall v. Railroad, 219 Mo. 586; Giles v. Railroad, 169 Mo.App. 37; Barker v. Railroad, 98 Mo. 53. At the time of his injury he was acting in violation of an ordinance of Hannibal, and was guilty of a misdemeanor under each section. Being a law breaker, he could not, under any circumstances become a licensee of defendants. They only owed him the duty of not wantonly or willfully injuring him after his peril was discovered. Wencker v. M., K. & T. Ry. Co., 169 Mo. 600; O'Donnell v. Railroad 197 Mo. 122; Feeback v. Railway Co., 167 Mo. 215; Carrier v. Railway Co., 175 Mo. 481. And this rule is not changed because Dalton was a minor. Barney v. Railroad, 126 Mo. 392; Hobert v. Collins, Lavery & Co., 80 N. J. L. 425; Anternoitz v. Railroad, 193 Mass. 542; Seeley v. Railroad, 157 Mich. 688.

W. A. Dudley, Chas. W. Wilson, O. H. Avery and Shepard Barclay for respondent.

(1) Dalton was not a law-breaker under the city ordinance or the statute, because not within the terms of either on the facts in evidence. R. S. 1909, sec. 4874. (2) The fourth instruction for plaintiff was correct; because, even though plaintiff may be guilty of negligence, contributing to his injury, it is no bar to his recovering therefor. "If the defendant could, in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened the plaintiff's negligence will not excuse him." Radley v. Railway, 1 App. Cas. (L. R.) 754; Inland Nav. Co. v. Tolson, 139 U.S. 558; Adams v. Ferry Co., 27 Mo. 95; Huelsenkamp v. Railway 37 Mo. 552; Morrissey v. Ferry Co., 43 Mo. 384; Karle v. Railway, 55 Mo. 484; Meyers v. Railroad, 59 Mo. 231; Klockenbrink v. Railroad, 81 Mo.App. 356, 172 Mo. 678; King v. Railways, 204 S.W. 1129; Beard v. Railroad, 272 Mo. 142. (3) Plaintiff's fourth instruction was correct in stating that (on the facts supposed as to long user this railway yard as a playground for children and thoroughfare for the public) it was the duty of defendants "to exercise ordinary care to ascertain whether anybody was upon said tracks or cars and to exercise care to notify any person on or about said tracks or on or around 'said cars' of the proposed movement of cars on said sidetrack, to enable them to get to a place of safety." Tutt v. Railroad, 104 F. 741 (similar facts); Felton v. Aubrey, 74 F. 350; Garner v. Trumbull, 94 F. 321; Cahill v. Railroad, 74 F. 285; Erie Railroad Co. v. Burke, 214 F. 247; Barry v. Railroad, 92 N.Y. 293; Kay v. Railroad, 65 Pa. St. 269; Lamphear v. Railroad, 194 N.Y. 172; Taylor v. Del. & H. Co., 113 Pa. St. 174; Francis v. Railroad, 247 Pa. St. 425; Mason v. Railway, 89 Wis. 151; Carmer v. Railway, 95 Wis. 513; Gesas v. Railroad, 33 Utah 156; Ashworth v. Railway, 116 Ga. 641; Railroad Co. v. Popp, 27 S.W. 992; Ervine v. Railroad, 158 Mo.App. 1; Mitchell v. Railroad, 34 A. 674; LeMay v. Railroad, 105 Mo. 351. As to such places as that in question, the same principles as to the duty to warn, before discovery, apply as in the case of railway track crossings; as many of these decisions cited assume, and some express. R. S. 1909, sec. 3140. (4) Respondent asks the court to reconsider the ruling as to "unseen trespassers," and to declare the law to be that in such circumstances as require the railway operatives to anticipate the presence of children where cars may strike them, it becomes the duty of such operatives to exercise ordinary care to warn those who may be in danger, as well as to use care to discover their presence. Such places are not different from regular track crossings, so far as concerns the duty to warn of train movements thereon. R. S. 1909, sec. 3140; Beard v. Railroad, 272 Mo. 155; Klockenbrink v. Railroad, 81 Mo.App. 356, 172 Mo. 678; Wilkins v. Railway, 101 Mo. 106; Fusili v. Railway, 45 Mo. 106; Thompson v. Railway, 93 Mo.App. 555; Lynch Case, 111 Mo. 601; Brown v. Railroad, 50 Mo. 464; Clark v. Railway, 64 Mo. 440; Ransom v. Depot Co., 126 S.W. 785; Kreis v. Railroad, 131 Mo. 544; Railway v. Means, 104 N.E. 787; Klotz v. Railroad, 68 Minn. 341; Cooper v. Railway, 66 Mich. 261. (5) The fourth instruction for plaintiff was sound in stating the duty of defendants. It did not submit facts for a verdict thereon; but it announced the principles of law as to defendants' duty to exercise reasonable care to warn as well as to discover persons in peril of being injured by train movements in a place where defendants were bound to anticipate their presence quite as much as at an established highway crossing of the track. R. S. 1909, sec. 3140. See decisions cited above. "The rationale of the rule requiring special precautions in backing trains over crossings or other places where persons are likely to be is in the increased danger to which they are subjected." Klotz v. Railroad, 68 Minn. 341; 2 Shearman & Red. on Negligence (6 Ed.), sec. 471, p. 1179. (6) "Negligent ignorance is in law equivalent to knowledge." Ashworth v. Railway, 116 Ga. 635; Rine v. Railway, 100 Mo. 235. (7) Plaintiff was not bound by all the testimony of defendants' engineer, Brown, whom plaintiff introduced as a witness: "this does not preclude him from establishing a case by other testimony, even though it is contradictory of that which he first offered." Phelan v. Paving Co., 227 Mo. 711; Maginnis v. Railroad, 268 Mo. 675; Knopp v. Wagner, 195 Mo. 637; State v. Shapiro, 216 Mo. 370; Brown v. Wood, 19 Mo. 475; Dunn v. Donnaker, 87 Mo. 597. (8) Where facts admitted by defendants or proven by undisputed testimony indicate that the judgment below is "for the right party" it should be affirmed, without regard to any supposed errors. Here, on the admitted facts as to user of these railways premises, absence of watchman (or other employee) near the place where the plaintiff was sitting on...