Dyrcz v. Missouri Pac. Ry. Co.

• Decision Date: 29 November 1911
• Citation: 238 Mo. 33,141 S.W. 861
• Parties: DYRCZ v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

141 S.W. 861

238 Mo. 33

DYRCZ v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

1. RAILROADS (§ 390) — INJURY TO PERSONS ON TRACK—HUMANITARIAN DOCTRINE.

One injured on a railroad track cannot recover under the humanitarian doctrine, unless there was a known user of the track by pedestrians, or he was actually seen by the railroad company's servants in time to have warned him and averted the injury by the use of ordinary care.

2. RAILROADS (§ 398)—INJURIES TO PERSONS ON TRACKS—EVIDENCE—SUFFICIENCY.

In an action against a railroad company for injuries received while on its track, evidence held to show that the injury was received while crossing the track, and not while walking on the track, so as to bring into play the humanitarian doctrine.

3. RAILROADS (§ 383)—INJURIES TO PERSONS ON TRACK—DUTY TO LOOK AND LISTEN.

A railroad track is an unequivocal sign of danger, and it is the duty of a person, before crossing such track, to look and listen.

4. RAILROADS (§ 398) — INJURY TO PERSONS ON TRACK—EVIDENCE.

Where the conditions were such that plaintiff, who was struck by a train while crossing a railroad track, must have seen it if he had looked, plaintiff's testimony that he did not see the train will be treated as a statement that he did not look.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Edward Dyrcz against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

R. T. Railey and Ben. J. Woodson, for appellant. Allen, Gabbert & Mitchell, for respondent.

LAMM, J.

Negligence. Plaintiff had a judgment for $1,500 in the Buchanan circuit court. Defendant appeals, raising, among others, constitutional questions.

The gist of the complaint is that, while plaintiff was on one of defendant's tracks in South St. Joseph on his way home on the afternoon of September 23, 1907, at a point where said track was customarily used by many persons going to and returning from certain packing houses, and which customary use was known to defendant, its agents and servants in charge of its certain freight train, he was run down from behind by the engine pulling said train and grievously hurt, viz., the bones of his right leg were broken, and he was otherwise bruised and wounded, and thereby permanently disabled; that his injuries were caused by the negligence of defendant's said servants and employés, as follows: (1) In that the train was negligently run at 30 miles per hour, in violation of a certain ordinance of St. Joseph, limiting the speed of trains within the city to 5 miles per hour, which ordinance was pleaded; in that (2) said servants and employés failed to sound the bell on said engine to warn plaintiff of the approach thereof, which failure was in violation of another ordinance of said city, also pleaded; and in that (3) defendant's said agents and servants saw, or by exercise of reasonable care and diligence could have seen, plaintiff in peril on the track in time to have averted his injuries, and negligently failed to warn him by bell, whistle, or other signal, and negligently failed to stop said train, etc. The petition charged, furthermore, that plaintiff was in the exercise of due care in looking and listening, and at sundry times turned around to see that no train was coming from behind, and was unaware of the approach of the train until it was too late for him to get out of the way.

Defendant answered by denying its own negligence and pleading the contributory negligence of plaintiff, not only at the time of his injury, but since that time in aggravating his injuries by his subsequent carelessness. It is next alleged that the bell and speed ordinances pleaded are unreasonable, unconstitutional, null and void for reasons set forth. The reply was conventional.

The record shows that plaintiff did not put his case to the jury on his first two specifications of negligence. He stood on the last, seeking recovery solely on the theory that defendant's servants either saw him in peril, or should have seen him in time to save him by using ordinary care. In this condition of things, the elaborate brief of defendant's counsel on the unreasonableness and unconstitutionality of the two ordinances pleaded is waste labor for the purposes of determining germane and live assignments of error. Accordingly we put those questions away from us.

Defendant introduced no testimony. At the close of its adversary's case, it offered an instruction in the nature of a demurrer to the testimony. Saving an exception to the refusal of that instruction, it now presses the point as decisive of the case. In our opinion, that assignment of error is well made, because: Attending to the facts, there follows a crude freehand drawing, compiled from an elaborate map, introduced by plaintiff, and produced here for our inspection. The sketch is not drawn to a scale, but will assist in describing the locus in quo and throwing light on the facts, viz.:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The scene is laid in South St. Joseph. BA is a segment of Michigan street, running practically east and west. Its western terminus is at B. From that point it extends east, cutting Lake avenue at right angles. Let ED represent a segment of Ohio street. It runs parallel with Michigan and 400 feet to the south. Let DA represent a north and south street, Lake avenue; it being a main thoroughfare in that vicinity. The area bounded by Michigan and Ohio streets and lying west of Lake is mostly vacant property, and we will call it the "block." North of Michigan are horse and mule barns. South of Ohio are vacant lots. Southeast of the block and some distance away is a settlement, called in the record, with a touch of humorous sarcasm, "Skeeterville." Plaintiff lived southeast of the block on Kentucky street, some two or three blocks away. West of the block is no street. Here there are a group of railroad tracks, running north and south; one of them is represented by the line REBS; another by the line TXY; and still others west of these are not shown on the diagram. On the map put in evidence, the line REBS is green, and the witnesses call it the green track. This green track belongs to the Rock Island, and on it (under some running arrangement) Santa Fé and Missouri Pacific trains come into and leave St. Joseph to the south. About 1,100 feet north of B there was a depot, not shown on the diagram. The railroad shown by the line TXY belongs to the Chicago, Burlington & Quincy, as did the other tracks and switch tracks west. These railroad tracks and intervening strips of land constitute practically a railroad yard of considerable width. West of them and extending on north were divers packing house establishments and grounds. The Chicago, Burlington & Quincy track shown on the diagram is 14 feet west of the green track. There were access to and egress from these packing house plants over open streets for the accommodation of residents southeast by their coming to Lake, going north to Illinois avenue (an east and west street, not shown on the diagram), and then going west and getting into the packing house grounds through other streets, not shown on the diagram. But that was a roundabout way. The ways generally used were by the paths shown by the dotted lines on the diagram. One of these paths ran up the cul-de-sac AB, and on west on the line of Michigan street, if it were projected west. Another ran up the cul-de-sac DE, and on west across the tracks in the line of Ohio street, if it had been projected west. Another commenced at D and ran diagonally across the block to B. This was a broad and much-used path, and the main one. When travel reached the point B going west, on the line BXC across the tracks, it took that line. There are other paths in the vicinity, but they are immaterial here. Plaintiff is an Austrian Pole, 28 years old, and at the time in hand was employed by the Swift Packing Company, whose plant was northwest of the locus in quo. He testified through an interpreter. On the day in question, at 5:30 p. m., he left Swift's, and went to the Hammond packing plant due west of Michigan street, where he had formerly been employed, and from that point he undertook to go to his home, aiming towards the point B at the head of Michigan street. Somewhere on his journey, and while among the railroad tracks, he picked up a short tie for fuel. With that tie on his shoulder, he crossed the Chicago, Burlington & Quincy track shown on the diagram at about X. At that time, on that track, there was a string of cars extending north from X to the depot north of X. There were also a string of a half dozen dead freight cars south of X. At X there was a decided break in the string of cars of six or seven feet, and plaintiff apparently crossed the Chicago, Burlington & Quincy track through this break or gap. When he reached B, instead of going down Michigan street to A, or instead of traveling on the well-beaten diagonal path from B to D, it is claimed he wheeled to his right, and took down the green railroad track, intending, apparently, to go to E, and thence down Ohio street to D. There is no doubt under the testimony but that at the point B, where the diagonal path joins the east and west path at the head of Michigan street, there was such continued and pronounced user shown by the public that defendant had a call to look out for pedestrians there. It had no right to expect a clear track at that point. But plaintiff was not hurt at that point. A Missouri Pacific train of 15 freight cars, south bound on the green track, and going rapidly, struck him 100 or 175 feet south of that point between B and E, and broke his leg. Between these two points, the green track is rough; the ties were about 20 inches apart; the space between them was ballasted with cinders and broken, vitrified brickbats, and this ballasting was not flush with the top...