Dodwell v. Missouri Pac. R. Co.

• Decision Date: 09 November 1964
• Docket Number: No. 50390,No. 1,50390,1
• Citation: 11 A.L.R.3d 1156,384 S.W.2d 643
• Parties: Charles DODWELL, a Minor, by His Mother and Next Friend, Virginia Dodwell Williams, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

Page 643

384 S.W.2d 643

11 A.L.R.3d 1156

Charles DODWELL, a Minor, by His Mother and Next Friend, Virginia Dodwell Williams, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 50390.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 14, 1964.

Norman R. Jones, Kansas City, Griffin Smith, Little Rock, Ark., Donald E. Raymond, Kansas City, for respondent.

Mark M. Hennelly, Charles P. Lippert, St. Louis, for appellant.

HOUSER, Commissioner.

Charles Dodwell, a minor, filed suit proami against Missouri Pacific Railroad Company for personal injuries inflicted as a result of the alleged negligence of the railroad employees in blocking a public street crossing in North Little Rock, Arkansas, with its train for an excessive period of time under the city ordinance, and when plaintiff attempted to cross over the cars of said train negligently moving the train without warning plaintiff in any manner of the impending movement, as a result of which plaintiff's leg was severed below the knee and he sustained other severe injuries. A trial jury awarded plaintiff $50,000. The railroad has appealed from the judgment entered upon the verdict.

From the evidence favorable to the prevailing party the jury could have found these facts: On June 8, 1960 plaintiff was 13 years old. His next birthday was July 28. He had just completed the eighth grade and was intending to go on to high school the following year. He had successfully completed all of his grades, was an 'average' student, and had made A's, B's and C's in his studies. He took part in sports, baseball, basketball, skating and swimming. He lived with his mother near the crossing where 10th Street crosses the Missouri Pacific tracks. Tenth Street leads from a residential area across two railroad tracks to a stairway extending from the Main Street viaduct. On the evening of June 8 plaintiff went swimming with other boys at the North Little Rock Boys' Club. After the pool closed for the night plaintiff returned with another boy and swam for another 5 or 10 minutes, in violation of the rules. Plaintiff started home alone, taking a route over the Main Street viaduct to a point halfway across the viaduct where a stairway leads down from the viaduct to 10th Street below. Railroad tracks upon which switching operations are conducted are located beneath the viaduct. It takes from 5 to 7 minutes to walk from the beginning of the viaduct to the stairway and another 2 minutes to go down the stairway and reach the crossing. When plaintiff had traversed one fourth of the route over the viaduct he looked down and saw a stationary train sitting on the 10th Street crossing. Plaintiff descended the stairway and stood at the crossing, waiting to see if the train was going to move. He waited for a time variously estimated at from 2 to 6 minutes. It was dark, the time close to 10 p. m. He looked both to the north and to the south, but was unable to see either end of the train because of curves in the tracks. The train had been stopped at least 11 minutes and possibly as much as 15 minutes, to his knowledge. The train did not move, so he decided to cross over the train and go home. Before doing so he did not hear a bell sounded, or a whistle, or any type of warning. He walked to his left to the nearest coupling and, the train still not moving, started to crawl through the train, climbed up on the coupling, and 'all of a sudden it [the coupling] popped,' the train moved suddenly and plaintiff fell off, sustaining the injuries which resulted in the necessity of amputation of his left leg 4 inches below the knee. During the year plaintiff lived in the area of the 10th Street crossing prior to the accident plaintiff observed people and vehicles using this crossing, and saw trains blocking the crossing sometimes two or three times a day, for periods varying from 5 minutes to 2 hours. Plaintiff observed that people 'just go on through' when the crossing is blocked by trains; people of all ages, from 5 years on up. He saw adults climb over the coupler and crawl under the wheels, within a distance of 20 feet on either side of the crossing. Other witnesses who lived nearby had noticed both children and adults crossing over and climbing over and under standing trains, to avoid walking several blocks to get around trains blocking the crossing. Children used the crossing daily going to school and to the Boys' Club. This situation obtained as far back as 1951 or 1952. He never saw a flagman there warning people of train movements and seldom heard a whistle sounded when a train moved of the crossing. No railroad crossing sign was posted there. Plaintiff knew of an alternate route from pool to home available to him, over the viaduct to the 7th Street exit, by which he could have avoided crossing the tracks, but he never used the other route; the route he took was shorter. In taking the route he followed that night he knew that he was walking to a blocked crossing, and that he would either have to wait for the train to move or go through the train. He knew that trains meant danger and that if he went through a train he might get hurt; that it was dangerous to crawl through a train. His mother had told him to stay off the trains. When he saw this train he knew it might be stopped there for a long time, possibly as long as an hour, and although he knew it was dangerous if he went through it he 'didn't believe the train would move from there.'

The railroad's first point is that the court erred in not directing a verdict in its favor because plaintiff was guilty of contributory negligence as a matter of law at least equal to if not in excess of any negligence on the part of the railroad. (Under the comparative negligence statute, Arkansas Statutes, 1947, Sec. 73-1004, a plaintiff may recover despite his contributory negligence, Tepel v. Thompson, 359 Mo. 1, 220 S.W.2d 23, 26 [7, 8], where his negligence is 'of less degree' than that of the railroad employees.)

The accident occurred in the State of Arkansas and the laws of that state must be applied. Howie v. St. Louis S. W. Ry. Co., 360 Mo. 771, 230 S.W.2d 703. In the absence of judicial precedents in Arkansas of which we may take cognizance we must apply our own precedents. Stevens v. Missouri Rac. R. Co., Mo.Sup., 355 S.W.2d 122, 128.

Imprimis, the railroad disclaims any and all liability to plaintiff on the ground that he was a trespasser, and invokes the general rule that a railroad company owes trespassers no positive duty of care and only the negative duty not to wilfully or wantonly injure them, or the duty to exercise ordinary care not to injure them after discovering their danger and inability to escape, citing the Arkansas cases of Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300, 103 S.W. 725; Catlett v. St. Louis, I. M. & S. Ry. Co., 57 Ark. 461, 21 S.W. 1062; Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62; Missouri Pac. R. Co. v. Merrell, 200 Ark. 1061, 143 S.W.2d 51; Allnutt v. Missouri Pac. R. Co., 8 F.2d 604 (8th Cir. 1925), and the Missouri case of Thrower v. Henwood, 351 Mo. 663, 173 S.W.2d 861. Whether plaintiff was a trespasser when he attempted to climb over the train depends upon whether he had a right to use the public crossing at that time. A city ordinance made it unlawful for any railway company to block or obstruct any of the street crossings within in the city limits for a longer period than five minutes at one time by either cars or locomotives. Under this ordinance the railroad had a right to occupy, block and obstruct the 10th Street crossing with its locomotive and cars for a period of five minutes. Its right to the occupancy of the crossing was temporarily exclusive and paramount to the traveling public's right of free passage at the crossing, and during that period the public's (and therefore plaintiff's) right of free passage was temporarily suspended. Any person boarding the cars of the train during that period without a privilege to do so created by the railroad's consent or otherwise would be a trespasser, under the cases of Central of Georgia Ry. Co. v. Chambers, 18o Ala. 155, 62 So. 724; Southern Ry. Co. v. Clark, 32 Ky.Law Rep. 69, 105 S.W. 384, 13 L.R.A.,N.S., 1071; Shea v. Chicago, M. St. P. and P. R. Co., 243 Wis. 253, 10 N.W.2d 135. Our conclusion that this is the law of Arkansas is supported by Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62, in which recovery was denied a widow and the heirs on the theory that their decedent was a trespasser in crawling under or between the cars of a live freight train just after it arrived in town and stopped, obstructing the principal thoroughfare, its engine still attached to the train, where deceased knew that the train would not be permitted to block the street except for a few minutes. During the period of the railroad's paramount (and exclusive) right to the use of the crossing the only duty of the railroad to a trespasser would be that of due care after discovery of such person in a dangerous position, and not to injure him wilfully or wantonly. Cato v. St. Louis Southwestern Ry. Co., supra; Shea v. Chicago, M. St. P. & P. R. Co., supra. Different considerations apply where a train has obstructed a crossing for an unlawful period. Travelers seeking to use the public street are not then obliged to wait until the train is removed before continuing their business, Brown v. The Hannibal & St. Joseph R. R. Co., 50 Mo. 461, but have 'the right to adopt some other means of effecting a crossing, and the company would be liable for any injury resulting in the attempt to cross, in the absence of contributory negligence * * *.' St. Louis Southwestern Ry. Co. v. Christian, 164 Ark. 65, 261 S.W. 297, 262 S.W. 29. In St. Louis, I. M. & S. Ry. Co. v. Wells, 102 Ark. 257, 143 S.W. 1069, the following from 2 Thompson on Negligence, Sec. 1674 was quoted...