Everett v. St. Louis & S.F.R. Co.

• Decision Date: 03 July 1908
• Parties: EVERETT v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Supreme Court

112 S.W. 486

214 Mo. 54

EVERETT v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. RAILROADS—PEDESTRIAN ON TRACK—JURY QUESTION.

Whether a pedestrian killed on a railway track was a trespasser held a jury question.

2. SAME — CARE AS TO TRESPASSERS.

The doctrine that a railway company is only liable for injury to a person on its track caused by wanton negligence or willfulness applies only where the injured person was a trespasser and was injured at a place where the company's agents and servants in charge of the train had no notice or reason to apprehend that any person would be.

3. SAME—PLEADING—ISSUES.

That the petition, in an action against a railway company for the death of a pedestrian, charges that the injury was willfully and wantonly caused by the company's servants in charge of the train, will not prevent recovery, if the evidence shows that the injury was negligent; the charge of willfulness being sustained by proof of negligence.

4. SAME—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Under the evidence, in an action against a railway company for the death of a pedestrian. held not error to overrule a demurrer to the evidence upon the ground of contributory negligence.

5. SAME—EVIDENCE—SUFFICIENCY.

Evidence, in an action against a railway company for the death of a pedestrian, held to warrant a finding that, notwithstanding decedent's negligence, the injury would not have happened if the company's servants in charge of the engine, after they discovered, or by exercising ordinary care could have discovered, the perilous position in which she had placed herself in time to have warned her of the approaching train, or in time to have stopped or slackened the speed thereof in time to have averted the injury, had so warned her or stopped the train.

6. SAME—INSTRUCTIONS.

In an action for the death of plaintiff's wife struck by a train while standing beside the track, instructions as to discovered peril and the duty of the persons in charge of the train held to properly state the law applicable to the facts.

7. NEGLIGENCE—"ORDINARY CARE" DEFINED.

"Ordinary care" is such care as an ordinarily careful and prudent person would exercise under the same or similar circumstances.

8. EVIDENCE—FAILURE TO CALL WITNESS—EFFECT.

In a personal injury action, it was not error to prevent defendant from showing that a particular person had been subpœnaed as a witness for plaintiff, that he was present in the courtroom, and that he was not called as a witness; such facts not bearing upon any issue in the case.

Appeal from Circuit Court, Franklin County.

Action by James N. Everett against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit originated in the circuit court of Franklin county, wherein plaintiff seeks to recover the sum of $5,000 damages from the defendant for the killing of his wife, Annie Everett, at Pacific, Mo., by the alleged negligence of its servants and employés in the operation of one of its freight trains.

The petition, in substance, charged: First. That the railroad track of defendant, for a distance of a half mile east of the corporate limits of Pacific, on May 24, 1904, and for a long time prior thereto, had been accustomed to be used as a road and footpath to and from Pacific by pedestrians from that city and vicinity, and generally by the forbearance, knowledge, and tacit consent of defendant, and at the point thereon where the alleged injury occurred said track of defendant was level and straight east and west therefrom for a long distance. Second. That plaintiff's wife, Annie Everett, on May 24, 1904, at 8 o'clock p.m., was walking upon the said railroad track of defendant about 300 feet east of the corporate limits of Pacific, and while so walking thereon a certain westbound freight train in charge of and operated by defendant on said track ran against and instantly killed plaintiff's said wife, and that her death was the direct result of the wanton disregard and of the careless and reckless manner in which the defendant's said train was run, in this: "That the defendant, its agents, servants, and employés, in charge of and operating said train, carelessly and negligently omitted to have placed in front of the engine drawing said train a headlight, lighted up at the time and place of the injury herein complained of occurred, and carelessly and negligently ran said train at an excessive rate of speed at the time and place the injury herein complained of occurred. That after the defendant, its agents, servants, and employés, in charge of and operating said train, seeing, or by the exercise of reasonable care and diligence, had they not been reckless in operating said train, could have seen, the dangerous position in which plaintiff's said deceased wife, Annie Everett, was situated, and seeing, or by the exercise of reasonable care and diligence, if said train had not been recklessly operated by defendants, its agents, servants, and employés in charge thereof, could have seen, the imminent peril in which plaintiff's said wife was placed, and that said deceased was unaware of the near and dangerous approach of said train, and that the defendant, its agents, servants, and employés negligently failed to sound the usual and ordinary signal in time to avert the injury herein complained of, and in fact did not at any time before the said injury to said Annie Everett either ring the bell, sound the whistle, or give any other signal by which his said wife might be warned of the near and dangerous approach of said train, and negligently failed and neglected to use the brakes or other appliances provided for stopping said train and at hand, and negligently failed to use the appliances provided and at hand for putting said train under control and stopping same before it struck and killed plaintiff's wife, but, on the contrary thereof, recklessly, negligently, willfully, and wantonly ran its said train against the plaintiff's said wife, so mutilating, wounding, and bruising her that from the effects thereof she did then and there immediately die, to the damage of the plaintiff in the sum of $5,000, for which sum of $5,000 the plaintiff prays judgment against the defendant and for the costs of this suit." Defendant's answer contains: (1) A general denial, except the admission of defendant's corporate existence and the death of plaintiff's wife, Annie Everett, from injuries received on May 24, 1904; and (2) a plea of contributory negligence of plaintiff's said wife, and that she was a trespasser. Plaintiff's reply was a general denial of the new matter set up in the answer. The case was tried before said court with the intervention of a jury, and was left to the jury upon evidence given by both parties, and, under the instructions of the court, the jury returned a verdict finding the issues for plaintiff and assessing his damages at $5,000, for which sum, in pursuance of the verdict, the court entered judgment for plaintiff. After unavailing motions for a new trial and in arrest of judgment, defendant appealed to this court.

Plaintiff's evidence tended to prove the following facts: That at the time of the injury and death of Annie Everett she was the wife of the plaintiff. That Pacific, the place where the injury occurred, is a town of about 1,200 inhabitants, through which pass two railroads; one being the Missouri Pacific, and the other is the road of defendant. Those two roads run parallel with each other from east to west and about 100 feet apart. Each have a depot at Pacific, and are opposite to each other. The depot and track of the latter is south of the former. The track and right of way of defendant was straight and level for a distance of one-half mile east of its depot, with no intervening obstruction of any kind. At a point about a half mile east of the depot, the track curves somewhat to the south, though the view is still clear. At the time of the accident defendant was constructing a pumphouse on its right of way at a point one-quarter of a mile east of its depot. Annie Everett was killed at or near that pumphouse. At that place defendant's track and the Meramec river run almost parallel with each other; the river being about 100 feet south of the track and about 200 feet east of the pumphouse. On the river there is a landing place for small boats, where they are tied up and have been used generally for years by the people of Pacific for fishing and pleasure purposes. At a point about 200 feet still further east of the pumphouse, there is located what is called the "tie chutes," which have been used for years for taking railroad ties from the river with a view of loading them upon the cars. Just north of the pumphouse and north of the Missouri Pacific tracks there are located some sand works, which have been operated for years in taking sand rock out of the river bluff, crushing and loading them on the cars, and about 500 feet east of those works are located other works of like nature, which have also been in operation for many years. Some 200 feet east of the pumphouse a public road crosses the tracks of the defendant and those of the Missouri Pacific Company. This road then runs along the foot of the bluff and diverges from the railroad tracks in a northwesterly direction and enters the town of Pacific, a distance of about two city blocks north of the Missouri Pacific track. The tracks of defendant are not inclosed from its depot in Pacific to the point where the said public road crosses its track, a distance of about 1,500 feet, except on the south side thereof from the depot to the pumphouse an adjoining landowner has constructed a fence to inclose his land. On the outside wall of the depot building, at Pacific, there was painted a notice warning the public to keep off its right of way, tracks, etc.; but no such notice was posted between the depot and the point where...