Ervin v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 20 July 1911
• Citation: 158 Mo. App. 1,139 S.W. 498
• Parties: ERVIN v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

139 S.W. 498

158 Mo. A. 1

ERVIN v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

July 20, 1911.

1. RAILROADS (§ 400) — ACCIDENT ON TRACK — QUESTION FOR JURY.

Where plaintiff's intestate was run over by a train while walking on the track, and there was evidence tending to show that at the time and place of the accident the public, without objection by the railroad company, had used the track as a pathway, it was a sufficient showing of user to require submission as to the user to the jury.

2. RAILROADS (§ 359) — ACCIDENT ON TRACK — DUTY OF OPERATIVES.

Where there is no showing of the user of a railroad track by pedestrians to such an extent as to warrant a reasonably prudent man to anticipate the presence of persons on the point where the injury occurred, the operatives are entitled to the presumption that there is a clear track, so that they are not responsible for failure to discover trespassers.

3. RAILROADS (§ 396) — PRESUMPTIONS — BURDEN OF PROOF.

The burden of establishing such user of a railroad track by the public as to destroy the presumption allowed to the operatives of the road that there is a clear track rests on the party alleging such user.

4. TRIAL (§ 278) — INSTRUCTIONS — SUFFICIENCY OF EXCEPTIONS.

An exception to instructions generally is sufficient, without pointing out in detail the specific instructions challenged.

5. RAILROADS (§ 359) — ACCIDENT TO PERSON ON TRACK — EVIDENCE.

Where, at the place the person was injured on the track, a defendant owed no duty to look out for persons on the track, then in order to recover plaintiff must show that the person injured was actually seen by the engineer in time to have avoided the injury.

6. RAILROADS (§ 401) — INJURY TO PERSONS ON TRACK — INSTRUCTIONS — USER.

An instruction as to the effect of user of a railroad track by the public, with the consent of the railway company, on the liability of the railroad for injuries to a person on the track at such point, should present two indispensable constituents of user, namely, the physical facts necessary to constitute the user, its character, nature, and duration, and the consent of the railroad company to such user, or its knowledge of, or acquiescence therein.

7. RAILROADS (§ 356) — ACCIDENT ON TRACK — ACQUIESCENCE IN USE.

Where the general public have been invited to use a track by tacit consent and long acquiescence, it is the duty of the railroad company to use ordinary care to protect pedestrians from being run down and injured.

8. RAILROADS (§ 401) — INJURY TO PERSONS ON TRACK — INSTRUCTIONS — USE OF TRACK.

An instruction, in an action for injuries to a person on track, where plaintiff alleged user of the track by consent of the railroad company, that the track must have been used as a pathway for several years with the consent and knowledge of the railroad company, was insufficient as not requiring the jury to find that there was a habitual use of the track, or that it was constantly so used, as such travel must be so continuous as to raise an inference of knowledge and acquiescence.

9. DEATH (§ 81) — DAMAGES — PENALTY.

Rev. St. 1909, § 5425, providing that in case of wrongful death, caused by the negligence

of the employés of a railroad while running trains, the corporation shall pay as a penalty for every person so dying a sum of not less than $1,000 and not exceeding $10.000, in the discretion of the jury, is penal, and a recovery can only be had for punitive damages, and not compensatory damages; and the jury may consider whether the conduct resulting in the injury arose from inattention, or was willful, wanton or reckless and assess the damages according to such finding.

10. DEATH (§ 48) — PLEADING — PETITION.

A petition in an action for wrongful death need not specify under what section of the damage act recovery is sought, and the petition is only required to contain a statement of facts, and in order to recover specific reference to any certain section is unnecessary.

11. DEATH (§§ 57, 104) — DAMAGES — ISSUES — INSTRUCTIONS.

In an action under Rev. St. 1909, § 5425, allowing punitive damages for death caused by negligence of railroad employés, where the petition shows on its face that it was based on the humanitarian doctrine, it was error to permit evidence of the age of deceased, his earning capacity, and the fact that he was the head of the family, and to give instructions allowing the jury to fix the amount of plaintiff's pecuniary loss, as under such section the damages should have been restricted to the penalty of not less than $2,000 and not exceeding $10,000.

12. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — INSTRUCTIONS.

In an action under Rev. St. 1909, § 5425, allowing punitive damages of not less than $2,000 and not exceeding $10,000 for wrongful death caused by negligence of railroad employés, an instruction that the jury could allow such damages as they might deem just with reference to the pecuniary injury plaintiff had suffered was not harmless, where the jury allowed $6,500, as it might have allowed only $2,000, and as the court on appeal cannot determine that the evidence of deceased's earning capacity did not influence the jury in awarding a larger sum.

13. RAILROADS (§ 350) — ACCIDENT TO PERSONS ON TRACK — EVIDENCE — DIRECTING VERDICT.

In an action for injuries to a person on a railroad track, on the ground that defendant's negligence after discovering the danger of plaintiff's intestate caused the injury, it was error under the evidence to direct a verdict for defendant.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by Bertie Ervin against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Robert T. Railey and Barbour & McDavid, for appellant. Hamlin & Seawell, for respondent.

NIXON, P. J.

Plaintiff brought this action in the circuit court of Greene county to recover $10,000 for the death of her husband, George B. Ervin, alleged to have been negligently killed by one of defendant's trains on the night of October 29, 1909, between 7 and 8 o'clock, while he was walking along and upon the defendant's track in the city of Springfield. The trial resulted in a verdict and judgment in favor of the plaintiff for $6,500, and defendant brings the case to this court on appeal.

The petition is as follows (caption omitted):

"Plaintiff for her cause of action against the defendant states that on the date hereinafter mentioned she was the wife of one George B. Ervin, and is at this time his widow, and that on said date the defendant was a corporation duly organized under and by virtue of the laws of the state of Missouri, and as such, owned, controlled, and operated a railroad in Greene county and the city of Springfield, Mo., and in the operation of said railroad used cars and locomotive engines propelled by steam.

"That Mill street is a public thoroughfare in the city of Springfield, Mo., and extends east and west in said city, and that Benton avenue and the National boulevard are public thoroughfares of said city and extend north and south, and that the city in the vicinity of Mill street on either side, between Benton avenue and the National boulevard, was thickly populated, and numerous factories and shops had their place of business in said vicinity.

"That the railroad track and right of way of the defendant along Mill street and between Benton avenue and the National boulevard on said date were and had been, for a long time prior thereto, by and with the knowledge and consent of the defendant, used by the public generally, and especially pedestrians going to and from their places of employment in the vicinity of Mill street, as a thoroughfare. Or that the defendant by the use of ordinary care could have known of said fact.

"That on the 29th day of October, 1909, between 7 and 8 o'clock p. m. of said day, George B. Ervin, the husband of plaintiff, while walking along said track or near same and using ordinary care, was struck by a train of cars and killed. That the death of the said George B. Ervin was caused by the negligence of the servants and employés of the defendant as follows:

"That they were in charge of a train composed of an engine and two cars, and that they were running the engine with the headlight and front end to the rear, and pushing the cars in front of it in the direction they were going, and that the said servants and employés failed to keep a lookout for persons on or near the track, or to place a light or signal upon the front of said car, or to give the said George B. Ervin warning by ringing the bell or sounding the whistle, or in any other manner, of the approach of said train.

"And that the servants and employés of the defendant in charge of said train negligently operated it, as aforesaid, after they saw George B. Ervin, or by the exercise of reasonable diligence could have seen him, upon or near said tracks in this: That without giving him any warning or signal, as aforesaid mentioned, ran against, upon, and over the said George B. Ervin and injured him, so that he instantly died.

"Plaintiff says that by reason of the death of her said husband, caused by the servants and employés of the defendant, as aforesaid mentioned, she has been damaged in the sum of $10,000."

For another cause of action, the matter contained in the first three paragraphs of the first count is again set forth, after which the second count proceeds as follows:

"That on the 29th day of October, 1909, and between 7 and 8 o'clock of said day, the servants and employés of the defendant, while in charge of defendant's engine and a couple of box cars, negligently and carelessly ran said engine and cars against, over, and upon one George B. Ervin, the husband of plaintiff, and injured him, so that he instantly died.

"That the negligence and carelessness of the servants and employés of defendant in the operation of said...