Dyrcz v. Missouri Pacific Railway Company
| Decision Date | 29 November 1911 |
| Citation | 141 S.W. 861,238 Mo. 33 |
| Parties | EDWARD DYRCZ v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.
Reversed.
Robert T. Railey and Ben J. Woodson for appellant.
The demurrer of defendant offered to the evidence should have been sustained for the reasons, viz.: First. Because the plaintiff, a trespasser, stepped in front of the train without first looking or listening for it. Second. Because plaintiff was warned by the sounding of the whistle in ample time to have gotten off the track, and his negligence in not doing so prevents his recovery in this case. If plaintiff had knowledge of the approaching train, or if by the exercise of ordinary care he could have known that fact, then he cannot recover, even though the bell was not rung or the whistle sounded. Harlan v. Railroad, 64 Mo. 480. The law as declared in the Harlan case, supra, has been enunciated by this court many times. Taylor v. Railroad, 86 Mo 462; Purl v. Railroad, 72 Mo. 168; Hallihan v Railroad, 71 Mo. 113; Kelley v. Railroad, 75 Mo. 141; Yance v. Railroad, 93 Mo. 437; Hanlon v. Railroad, 104 Mo. 388; Baker v. Railroad, 122 Mo. 573; Lane v. Railroad, 132 Mo. 27; Payne v. Railroad, 136 Mo. 576; Schmidt v. Railroad, 191 Mo 228.
Allen, Gabbert & Mitchell for respondent.
(1) Plaintiff was not a trespasser. Plaintiff and a large number of others had for a long time been accustomed to use the track as a footpath. LeMay v. Railroad, 105 Mo. 370; Lynch v. Railroad, 111 Mo. 601; Guenther v. Railroad, 108 Mo. 18; Murrell v. Railroad, 105 Mo.App. 88. Even though notices may have been posted to warn people of danger and to keep them off the track, such notices are of no avail to the defendant where there has been a long and continued disregard thereof by the public. Such are the facts in this case. Fearons v. Railroad, 180 Mo. 208. (2) This case was submitted to the jury solely on the humanitarian doctrine. There was ample evidence to support the verdict. The track was straight for more than a mile on either side of the place where plaintiff was struck. The train crew had no right to expect a clear track. The track was constantly used by pedestrians, and had been for years. Eppstein v. Railroad, 197 Mo. 720; Fiedler v. Railroad, 107 Mo. 645; Fearons v. Railroad, 180 Mo. 228; Morgan v. Railroad, 159 Mo. 262; Scullin v. Railroad, 184 Mo. 695; Murphy v. Railroad, 228 Mo. 76; Ahnefeld v. Railroad, 212 Mo. 280; Cotner v. Railroad, 220 Mo. 306; Everett v. Railroad, 214 Mo. 54; Frye v. Railroad, 200 Mo. 400; Klockenbrink v. Railroad, 172 Mo. 678. There was substantial evidence to support the verdict of the jury. The verdict therefore is conclusive on the defendant and should not be disturbed on appeal. Morgan v. Keller, 194 Mo. 663; Levels v. Railroad, 196 Mo. 606; Stumpe v. Kopp, 201 Mo. 412; Wayland v. Johnson, 130 Mo.App. 80; Wood v. Railroad, 119 Mo.App. 78; LeMay v. Railroad, 105 Mo. 365. Where there is evidence to support the verdict which is approved by the trial court, the judgment will not be reversed, though the appellate court may believe the finding of the jury is against the weight of the evidence. Nephler v. Woodward, 200 Mo. 179; Knapp v. St. Louis Trust Co., 199 Mo. 640; Colyer v. Railroad, 113 Mo.App. 457; McNulty v. Railroad, 203 Mo. 475. Besides, defendant saw fit to stand on its demurrer to the evidence, thereby admitting plaintiff's evidence to be true. (3) Plaintiff's injuries are permanent -- the verdict is small. The judgment is clearly for the right party, and should be affirmed. Woody v. Railroad, 104 Mo.App. 678; Peterson v. Railroad, 199 Mo. 331.
Negligence. Plaintiff had a judgment for $ 1500 in the Buchanan Circuit Court. Defendant appeals, raising () 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 employees as follows: (1) in that the train was negligently run at thirty miles per hour in violation of a certain ordinance of St. Joseph limiting the speed of trains within the city to five miles per hour (which ordinance was pleaded); in that (2) said servants and employees 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 or 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.:
[SEE ILLUSTRATION IN ORIGINAL]
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 four hundred 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 Fe and Missouri Pacific trains come into and leave St. Joseph to the south. About eleven hundred feet north of B there was a depot, not shown on the diagram. The railroad shown by the line TXY belongs to the C. B. & Q., 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 C. B. & Q. track shown on the diagram is fourteen 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 round-about 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...
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