Eppstein v. Missouri Pacific Railway Co.

• Decision Date: 20 June 1906
• Citation: Eppstein v. Missouri Pacific Railway Co., 197 Mo. 720, 94 S.W. 967 (Mo. 1906)
• Parties: FANNIE EPPSTEIN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

94 S.W. 967

197 Mo. 720

FANNIE EPPSTEIN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

June 20, 1906

Appeal from Cooper Circuit Court.-- Hon. Jas. E. Hazell, Judge.

Affirmed.

Martin L. Clardy and John Cashman for appellant.

(1)The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence at the close of plaintiff's case.(a) The evidence offered by plaintiff proved beyond a doubt that deceased was a trespasser.With this, there is a total failure of any proof that the persons in charge of defendant's train saw the deceased upon the track in time to have stopped the train before it struck him.Indeed, the evidence proves that no person on the train saw deceased at all.In this state of the evidence there was nothing to submit to the jury.Carr v. Railroad,195 Mo. 214;Baker v. Railroad,98 Mo. 50;Carrier v. Railroad,175 Mo. 470;Van Bach v. Railroad,171 Mo. 338;Engleking v. Railroad,187 Mo. 158;Koegel v. Railroad,181 Mo. 379;Coatney v Railroad,151 Mo. 35;Moore v. Railroad176 Mo 528;Loring v. Railroad,128 Mo. 349;Tanner v Railroad,161 Mo. 497.(b) Even if it be conceded that deceased was, as contended by plaintiff, a licensee, still plaintiff cannot recover, because all the evidence is that deceased was upon defendant's track for his own convenience and pleasure, and this alone.In this state of facts defendant owed deceased no duty to keep a lookout for him, by those in charge of the train.Carr v. Railroad, supra;Moore v. Railroad,84 Mo. 485;Straub v. Soberer,53 Mo. 43;Barney v. Railroad,126 Mo. 389;Morgan v. Railroad,7 F. 79;Wencker v. Railroad,169 Mo. 592;Sweeney v. Railroad,10 Allen 372;Cusick v. Adams,115 N.Y. 55;Elliott on Railroads, sec. 1250.(c)Plaintiff's evidence discloses a case of such inexcusable abandonment by deceased of any care for his own safety, and such a reckless disregard of that watchfulness and precaution which the law demanded of him in the position in which he placed himself, that he cannot, in any event, recover in this case, especially where, as here, there is an absolute absence of any proof that those in charge of the train ever saw deceased before he was struck, or of any reckless, willful or wanton disregard of human life by the persons in charge of the train.Davies v. Railroad,159 Mo. 1;Tanner v. Railroad,161 Mo. 497;Carrier v. Railroad,175 Mo. 470;Engleking v. Railroad,187 Mo. 158;Coatney v. Railroad,151 Mo. 35;Guyer v. Railroad,174 Mo. 344;Koegel v. Railroad,181 Mo. 379;Holwerson v. Railroad,157 Mo. 216;Van Bach v. Railroad171 Mo. 338;Peterson v. Railroad,156 Mo. 552;Sharp v. Railroad,161 Mo. 214;Culbertson v. Railroad,140 Mo. 35;Vogg v. Railroad,138 Mo. 172;Watson v. Railroad,133 Mo. 246;Maxey v. Railroad,113 Mo. 1;Powell v. Railroad,75 Mo. 80.(d) The law presumes that the engineer or the persons in charge of the train discharged their duty, and in the absence of all evidence to the contrary, this presumption is the law of the case, as so often declared by this court.Buch v. White,85 Mo. 356;Long v. Company,68 Mo. 431;Hammond v. Gordon,93 Mo. 226;State ex rel. v. Bank,120 Mo. 169;Lenox v. Harrison,88 Mo. 491;State ex rel. v. Williams,99 Mo. 302;Mathias v. O'Neal,94 Mo. 528;Yarnell v. Railroad,113 Mo. 579;Henry v. Dulle,74 Mo. 451.(e) Even if it be conceded that those in charge of the train did actually see deceased upon the track, they had a right to presume that he would exercise usual and ordinary precautions of a person who voluntarily places himself in a position where he is liable to be overtaken by engines or trains at any time.This presumption may be indulged by the trainmen until the actions or attitude of deceased assume a course or state which indicates to a person, in the exercise of ordinary judgment, that deceased was wholly oblivious of his peril.If, after the trainmen became aware that deceased was unmindful of his dangerous situation, they acted promptly and used the means at their command to avoid injury, in a way consistent with the safty of those in their charge, defendant cannot be held liable.Carrier v. Railroad,175 Mo. 470;Guyer v. Railroad,174 Mo. 344;Engleking v. Railroad,187 Mo. 158;Boyd v. Railroad,105 Mo. 371;Van Bach v. Railroad171 Mo. 338;Coatney v. Railroad,151 Mo. 35;Barker v. Railroad,98 Mo. 50.(2) The failure to ring the bell, or give the signal, is not shown to have contributed to the injury, nor did the speed of the train contribute to the injury.It is then immatial whether defendant failed to perform either of these duties.The acts and conduct of deceased being grossly negligent, and this negligence continuing up to the moment of the accident, concurred with any negligence of which defendant's servants may be guilty, and, therefore, precludes a recovery in this case.Koegel v. Railroad,181 Mo. 379;Peterson v. Railroad,156 Mo. 552;Green v. Railroad,90 S.W. 805;Schmidt v. Railroad,90 S.W. 138;Maxey v. Railroad,113 Mo. 1;Powell v. Railroad,76 Mo. 80.(3) From the failure of defendant to introduce the engineer and fireman, or other members of the train crew to testify at the trial, there can be no legal presumption raised against defendant as to the conduct of the men in charge of the train.The rule is that where a particular person is equally within the control of both parties and is not called as a witness, there is no ground for any presumption against either.Kerstner v. Vorweg,130 Mo. 201;Bank v. Worthington, 145 Mo. 103.

W. G. & G. T. Pendleton and W. M. Williams for respondent.

(1) The testimony amply justified the court in submitting the case to the jury, and the verdict is fully supported by the evidence.Pedestrians, citizens of Boonville and farmers living in the vicinity had for many years, without objection on the part of defendant's servants and agent, used the railroad track at the place where deceased was hurt, and north and south thereof, as a pathway in going to and returning from the business part of the city.This had continued so long that defendant's servants in charge of its trains must be held to have had notice thereof.The custom must have been known to the defendant, for, in addition to the general use of the track for this purpose, which had existed for years, it posted signs immediately after the injury, warning people not to go on the right of way.The engineer in charge of defendant's locomotive had "reasonable ground to expect or anticipate the presence of persons" on the track about that place, and it was his duty to keep a look-out for the presence of such persons thereon.Fearons v. Railroad,180 Mo. 222;Rayburn v. Railroad,187 Mo. 573;Morgan v. Railroad,159 Mo. 262;Murrell v. Railroad,105 Mo.App. 93;Gunther v. Railroad,95 Mo. 286."It has been repeatedly held by this court that greater care is to be exercised by persons managing a train of cars within the limits of a town or city than is required in the country.In towns caution should always be used."Frick v. Railroad,75 Mo. 609.(2)Defendant's servants in charge of its train, with the slightest care upon their part, and by merely looking ahead of them, could have seen deceased for at least three hundred yards before he was struck, and in view of the dangerous machinery which they were handling, and the long-continued practice of people to walk on said track, they should have been on the look-out; and had they looked they would have seen that the attention of the deceased was drawn to the Missouri, Kansas & Texas freight train coming from the south on a track parallel with their own, and that he was looking at said freight train with his hand shading his eyes, and was oblivious of the approach of defendant's train from the north, and that some warning or signal was necessary in his perilous situation.Defendant's servants wholly failed to sound the whistle, ring the bell or give him any warning whatever, and in this there was culpable negligence.Morgan v. Railroad,159 Mo. 262;Fearons v. Railroad,180 Mo. 222;Thomas v. Railroad,39 L. R. A. 399;Pickett v. Railroad,30 L. R. A. 257.(3) The ordinance of the city of Boonville read in evidence required the bell to be rung contantly while the locomotive was passing through the city.This was not done nor was any other signal or warning given to deceased before the train struck him.The failure to ring the bell, as required by the ordinance, was negligence per se.Eswin v. Railroad,96 Mo. 290;Keim v. Railroad,90 Mo. 314;Burger v. Railroad, 112 Mo. 238.

LAMMJ. Brace, C. J., Valliant and Gantt, JJ., concurring in toto; Burgess, Fox and Graves, JJ., concurring in the result.

OPINION

In Banc

LAMM, J.

This is a suit by the widow of Veit Eppstein to recover statutory damages for the death of her said husband through the alleged negligence of defendant railroad company.To reverse a judgment in her favor, defendant appeals.

The petition counts on the following grounds of recovery:

First: That Mr. V. Eppstein was killed on defendant's track in the city of Boonville, where at the time there was an ordinance in force providing that no engine or car should be run at a greater rate of speed than five miles per hour and that the bell of each locomotive should be rung continuously while such engine is passing through the city -- one of the complaints being that defendant negligently violated this ordinance and by such violation caused his death.

Second (to borrow the language of the petition): "Plaintiff . . . states that on the 7th day of March, 1902, the plaintiff's said husband, Veit Eppstein, was walking southward on the track of said defendant's railway about one half mile south of defendant's station in said city...