Dutcher v. Wabash R. Co.

• Citation: 145 S.W. 63
• Parties: DUTCHER v. WABASH R. CO.
• Decision Date: 09 February 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 63

DUTCHER v. WABASH R. CO.

Supreme Court of Missouri.

February 9, 1912.

Rehearing Denied March 1, 1912.

1. RAILROADS (§ 390)—PERSONS ON TRACK— HUMANITARIAN RULE.

Where a person voluntarily uses a railroad track as a footpath and walks thereon apparently heedless of a train approaching from the rear, and she is seen by the railroad company's servants in charge of a locomotive, who realize her danger, they are then bound to exercise due care to do what they can with the means at hand to avoid injuring her, and if they fail either to take proper steps to warn the person or to stop the train, or fail to act with reasonable promptness, the railroad company is liable for the injury sustained, notwithstanding the person's contributory negligence.

2. RAILROADS (§ 376)—PERSONS ON TRACK— HUMANITARIAN RULE—"DUE CARE"—MEANS TO AVOID INJURY.

Where a railroad engineer approaching a trespasser walking on the track sees her danger, and that she is entirely oblivious thereof, due care on his part means the timely use of the bell and whistle, and, if these are not effective, the use of means at hand to stop the train before striking her.

3. RAILROADS (§ 376)—PERSONS ON TRACK— DUTY TO KEEP LOOKOUT.

While the servants in charge of a railroad locomotive are under no duty to keep a lookout for trespassers on the track in the country, away from congested population, and between public crossings, in the absence of a known and permitted public user of the track, yet if a trespasser is actually seen on the track and in peril, a great way off, the servants in charge of the locomotive must avoid injuring her.

4. RAILROADS (§ 400)—PERSONS ON TRACK— INJURIES—HUMANITARIAN DOCTRINE—QUESTION FOR JURY.

In an action for injuries to plaintiff while walking on a railroad track by being struck by a train approaching from the rear, whether the engineer who had plaintiff in view for a long distance and knew of her danger, and that she was oblivious of the approach of the train, exercised due care to avoid injuring her by first giving signals and then taking timely steps to stop the train, if the signals were not observed, held for the jury.

5. TRIAL (§ 205)—INSTRUCTIONS—CONSIDERATION AS A WHOLE.

Whether a particular instruction is erroneous depends on a consideration of the instructions as a whole.

6. TRIAL (§ 252)—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

Where, in an action for injuries to a trespasser on a railroad track by being struck by a train approaching from the rear, there was no evidence that the engineer relied on the "rumbling" of the train to warn plaintiff of her danger, the court properly refused to charge that warning signals were not required until the engineer discovered that plaintiff did not hear the rumbling of his train.

7. RAILROADS (§ 401)—PERSON ON TRACK— INJURIES TO TRESPASSER—INSTRUCTIONS— HUMANITARIAN RULE.

Where an action for injuries to a trespasser on a railroad track was within the humanitarian rule, a request to charge that plaintiff could not recover because she walked leisurely down the track without turning her head, notwithstanding the jury might believe that no signal was given or effort made to stop the train, was erroneous.

8. RAILROADS (§ 401)—INJURIES TO TRENSPASSERS— DISCOVERED PERIL—DUE CARE.

Where a train was passing plaintiff as she was walking along a railroad track, and was making such a noise as to neutralize the effect of signals given by another train approaching from the rear, and the engineer of the latter train discovered plaintiff's peril and saw that she was oblivious of her danger and had not heard his signals, if given, an instruction that an alarm signal given by such engineer 600 feet before he struck plaintiff was due care, and that defendant was not required to stop the train when in stopping distance of plaintiff, was properly refused.

9. RAILROADS (§ 400)—INJURY TO TRESPASSERS—INSTRUCTIONS—CARE REQUIRED.

Where a trespasser on the track was struck by a railroad train approaching from the rear, the fact that the noise of a train passing plaintiff on an adjoining track tended to neutralize the signals of the train by which she was struck did not make it her duty, as a matter of law, to look behind and see if a train was approaching.

10. TRIAL (§ 194)—INSTRUCTIONS—PROVINCE OF JURY—INVASION.

Where plaintiff was struck by a train approaching from the rear while she was walking on a railroad track, an instruction that if the alarm signals and attempts to stop the train began 600 feet from plaintiff, and continued until she was struck, she could not recover, was properly refused as invading the province of the jury in determining what was due care under the circumstances of the case.

11. RAILROADS (§ 390)—PERSONS ON TRACK— INJURIES TO TRESPASSERS — CONTRIBUTORY NEGLIGENCE.

Contributory negligence is no defense to an action for injuries to a person while walking on a railroad track as a trespasser, where the facts bring the case within the humanitarian rule.

12. RAILROADS (§ 401)—INJURY TO TRESPASSER— INSTRUCTIONS—WANTON INJURY.

Where an action for injuries to a trespasser was within the humanitarian rule, an instruction that defendant owed no duty to plaintiff except not to willfully and wantonly run on her without warning was properly refused, defendant's duty being measured by the exercise of due care, which did not exclude the duty to stop.

13. RAILROADS (§ 376)—PERSONS ON TRACK —TRESPASSERS—INSTRUCTIONS.

Where the engineer of the train, by which plaintiff was struck while walking as a trespasser on defendant's track, saw that another freight train was passing plaintiff at about the point of collision at the time, and was making a great noise which would tend to neutralize the sound of his own train, the noise of the passing train had a bearing on the care required of defendant's engineer in taking steps to avoid injury to plaintiff after discovering her peril.

14. TRIAL (§ 194)—PROVINCE OF JURY—INVASION.

An instruction that if the whistle of defendant's locomotive by which plaintiff was struck was blown from 300 to 600 feet from plaintiff, and afterwards until she was struck, and the engineer did all in his power to save her after discovering she did not get off the track to avoid her own injury, then she could not recover, was properly refused as invading the jury's province by limiting the distance the engineer was obliged to begin an effort to warn and save plaintiff to within 300 to 600 feet.

15. RAILROADS (§ 395)—PERSONS ON TRACK— INJURIES—EVIDENCE.

Where, in an action for injuries to a trespasser on a railroad track by being struck by a train approaching her from the rear, she claimed that defendant's engineer, after discovering her peril, did not exercise due care to prevent the injury, either by warnings or by stopping the train, evidence that another train was passing the point of the accident on an adjoining track at the time, making a great noise, and that any experienced person observing the trains could see that the two would pass at or about the place she was struck, was admissible as bearing on the question of due care, though not pleaded as specifications of negligence.

16. APPEAL AND ERROR (§ 1064)—INSTRUCTION —PREJUDICE.

In an action for injuries to a trespasser on a railroad track to which the humanitarian doctrine was applicable, the court gave an instruction that plaintiff was a trespasser, and defendant owed her no duty "in the first instance," except to warn her by the usual signals of the approach of the train in time for her to step off the track and avoid being struck, as modified by the insertion of the words quoted. Held, that the instruction, if harmful to any one, was not so to defendant.

17. DAMAGES (§ 132)—EXCESSIVENESS—PERSONAL INJURIES.

Plaintiff, a young lady school teacher, while walking on defendant's railroad track to her home, was struck and injured by a train approaching her from the rear. When she was taken up, she was unconscious and remained so for days. She was injured on her head, one arm and one leg were broken. She was disfigured, one of her feet and the toes of that foot were drawn out of place, so that she was thereafter clubfooted and lame. One arm was crooked, there being a catch in the elbow, and she was otherwise seriously injured and crippled for life. Held, that a verdict for $10,000 was not excessive.

18. APPEAL AND ERROR (§ 207) — MISCONDUCT OF COUNSEL — NECESSITY OF OBJECTIONS AND EXCEPTIONS.

Misconduct of counsel in argument is not reviewable in the absence of an objection and exception taken at the trial, and a request that the court admonish and rebuke him.

Woodson and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Adair County; Nat. M. Shelton, Judge.

Action by Marie Dutcher against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Minnis and Higbee & Mills, for appellant. F. M. Harrington, Campbell & Ellison, and Gage, Ladd & Small, for respondent.

LAMM, J.

Negligence. Defendant in apt time and due form appeals from a judgment in the Adair circuit court entered on a verdict in plaintiff's favor for $10,000.

The pleadings. As we construe the petition, it counts on the three specifications of negligence following:

First. That plaintiff was walking on defendant's track in Randolph county south of the city of Moberly at a point where said track (with the knowledge of defendant and its officers, servants, and employés) was for a long time treated as a thoroughfare by people not connected with the railroad service, and by them was traveled as a public highway of said county. That such public user cast the duty upon defendant's employés running its trains to keep a sharp lookout for persons on the track in front of them and exposed to danger. That on the occasion in hand defendant's employés running a certain locomotive and train of cars failed to perform this duty, when by ordinary care in looking out they would have...