Everett v. St. Louis & San Francisco Railroad Company
| Decision Date | 14 July 1908 |
| Citation | 112 S.W. 486,214 Mo. 54 |
| Parties | JAMES N. EVERETT v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. Wm. A. Davidson, Judge.
Affirmed.
L. F Parker, W. F. Evans and John G. Egan for appellant.
(1) The notice of the railroad company posted at its station at Pacific forbidding trespassing upon its track or premises prevented any license arising from trespassing thereon. Frye v. Railroad, 200 Mo. 403; Koegel v Railroad, 181 Mo. 396; Hyde v. Railroad, 110 Mo. 396; Pulley v. Railroad, 94 Iowa 567. (2) Before the duty can be imposed upon the railroad company to exercise ordinary care to discover trespassers upon its track, it must be shown that trespassers habitually used its track, with its consent, at the hour of the day in question. Frye v Railroad, 200 Mo. 401; Engelking v. Railroad, 187 Mo. 158. (3) There is no duty to trespassers to have a headlight upon an engine. Frye v. Railroad, 200 Mo. 407; Hyde v. Railroad, 110 Mo. 279. (4) It was not negligence per se if the defendant had no headlight on the engine. Barry v. Railroad, 98 Mo. 73; Hyde v. Railroad, 110 Mo. 279; Frye v. Railroad, 200 Mo. 407. (5) There is no duty toward trespassers not to run at a high rate of speed. Railroad v. Wood, 99 Va. 156. (6) The negligence of the deceased is a complete defense to any claim that the train was running at an excessive speed. Jackson v. Railroad, 157 Mo. 621; Schmidt v. Railroad, 191 Mo. 215. (7) Running at a high rate of speed is not evidence of wantonness. Peterson v. Railroad, 156 Mo. 552; Schmidt v. Railroad, 191 Mo. 235; Green v. Railroad, 192 Mo. 131; Blanchard v. Railroad, 126 Ill. 416. (8) Section 1102, Revised Statutes 1899, on the subject of sounding of bell or whistle for public road crossings, does not apply for the benefit of a person on the track or right of way from the crossing. Bell v. Railroad, 72 Mo. 58; Evans v. Railroad, 62 Mo. 58; Maxey v. Railroad, 113 Mo. 1; Railroad v. Workman, 66 Ohio St. 509; Shackelford's Admr. v. Railroad, 84 Ky. 47; Batchelder v. Railroad, 72 N.H. 528. (9) The railroad company is not required to give signals to warn trespassers on its track before it discovers them upon the track. Sites v. Knott, 197 Mo. 716. (10) Failure to give signals is not evidence of wantonness. Matta v. Railroad, 69 Mich. 109. (11) The negligence of the deceased is a complete defense for any failure to give a signal of the approach of the train, if there was such failure. Porter v. Railroad, 199 Mo. 97; Koegel v. Railroad, 181 Mo. 397; Green v. Railroad, 192 Mo. 139; Mockowik v. Railroad, 196 Mo. 550; Lane v. Railroad, 132 Mo. 27; Mizzell v. Railroad, 132 Ala. 504. (12) The engineer has a right to presume that a person on or near the track will get off or keep off so as to avoid being struck by the train, and is not bound to make an effort to stop the train until it appears that such person will not make such effort. Carrier v. Railroad, 175 Mo. 483; Sites v. Knott, 197 Mo. 709; Tanner v. Railroad, 161 Mo. 497; Skipton v. Railroad, 82 Mo.App. 142; Schmidt v. Railroad, 191 Mo. 232; Jackson v. Railroad, 157 Mo. 632. (13) The railroad company is not liable in this case on the last chance or humanitarian doctrine. Frye v. Railroad, 200 Mo. 377; Koegel v. Railroad, 181 Mo. 379; Zumault v. Railroad, 175 Mo. 288; Tanner v. Railroad, 161 Mo. 497; Kreis v. Railroad, 148 Mo. 321; Ayers v. Railroad, 190 Mo. 228; Engelking v. Railroad, 187 Mo. 158; Riggs v. Railroad, 158 Mass. 309; Brennan v. Railroad, 55 U. S. App. 51; Railroad v. Reichert, 69 Ill.App. 91; Hoopes v. Railroad, 72 Kan. 422; Finnegan v. Railroad, 127 Mich. 15; Sims v. Railroad, 116 Mo.App. 579. (14) If a person on or near the track could have seen the train if he looked, it is conclusively presumed that he did see the train, and testimony that he looked and did not see the train is of no effect. Porter v. Railroad, 199 Mo. 98; Kelsay v. Railroad, 129 Mo. 374; Graney v. Railroad, 157 Mo. 679; Lane v. Railroad, 132 Mo. 27; Mockowik v. Railroad, 196 Mo. 569; Schmidt v. Railroad, 191 Mo. 236. (15) If the attention of the deceased was diverted to the Missouri Pacific train, that did not excuse her negligence in failing to discover the Frisco train, and in failing to place herself at a safe distance from the Frisco track. Maxey v. Railroad, 113 Mo. 11; Green v. Railroad, 192 Mo. 142; Koegel v. Railroad, 181 Mo. 389; Peterson v. Railroad, 156 Mo. 556; Butts v. Railroad, 98 Mo. 272; Guhl v. Whitcomb, 109 Wis. 69; Schmidt v. Railroad, 149 Pa. St. 357. (16) If the view of the deceased to the east along the Frisco track was obscured by smoke it was her duty to have placed herself at a safe distance from the track and stayed there until the smoke drifted away and she could have seen with certainty whether or not a train was coming upon the Frisco track, and her failure to perform such duty was negligence. Oleson v. Railroad, 143 Ind. 405; Heaney v. Railroad, 112 N.Y. 122; Railroad v. McClellan, 69 Ohio St. 142; Railroad v. Fisher, 49 Kan. 460; McCrory v. Railroad, 31 F. 531. (17) The contributory negligence of the deceased should bar recovery in this case. Frye v. Railroad, 200 Mo. 377; Porter v. Railroad, 199 Mo. 82; Koegel v. Railroad, 181 Mo. 379; Zumault v. Railroad, 175 Mo. 288; Kreis v. Railroad, 148 Mo. 321; Tanner v. Railroad, 161 Mo. 497; Ayers v. Railroad, 190 Mo. 228; Engelking v. Railroad, 187 Mo. 158.
Jesse H. Schaper and W. L. Cole for respondent.
(1) There was substantial evidence to warrant the court in submitting the case to the jury, and the verdict is amply supported by the evidence. It was the peculiar province of the jury to determine whether or not the place where the deceased was injured was of such a character that appellant had reason to anticipate the presence of persons on the track, and whether or not the time when she was injured was such that it had reason to anticipate the presence of persons on the track, and from all of which arose the duty on the part of appellant to be on the lookout for persons, and to see and warn them. Eppstein v. Railroad, 197 Mo. 720; Rayburn v. Railroad, 187 Mo. 573; Fearons v. Railroad, 180 Mo. 222; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 587; Ahnefeld v. Railroad, 212 Mo. 280. Contributory negligence will not exonerate defendant and disentitle the plaintiff from recovering, if it be shown that defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the deceased wife of plaintiff. Inland Seaboard Coasting Co. v. Tolson, 139 U.S. 557; Gleeson v. Railroad, 140 U.S. 443; Railroad v. Ives, 144 U.S. 408; Railroad v. Cox, 145 U.S. 593; Guild v. Pringle, 76 C. C. A. 192. The trial court in passing upon the demurrer to the evidence was bound to take notice of the whole case, and if, upon any view which could be properly taken of the facts, the evidence tended to establish the plaintiff was entitled to recover, the case should have been submitted to the jury. Railroad v. Cox, 145 U.S. 606; Dunlap v. Railroad, 130 U.S. 649; Guild v. Pringle, supra; Railroad v. Genry, 163 U.S. 353. The demurrer admits as absolutely true all the evidence offered favorable to plaintiff and all reasonable and fair inferences to be drawn therefrom in his favor. Bender v. Railroad, 137 Mo. 240; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 475. (2) Appellant's servants, engineer and fireman, in charge of the locomotive and train, well knew that the Missouri Pacific train was running west and parallel with and a short distance in advance of their own, and had they looked, they could have seen that the attention of the deceased and her company was drawn to said passing Missouri Pacific train and unaware of the near approach of appellant's train coming from the same direction, a short distance in the rear, and that some warning or signal was necessary to put her on her guard in her perilous situation. The failure on the part of appellant's said servants to sound the whistle, ring the bell or give her any warning whatever, was culpable negligence. If said servants had been on the lookout, even after they had approached too close to be stopped, and had they sounded the whistle one or more times, the ladies would no doubt have stepped back and the life of Mrs. Everett would have been saved. Chamberlain v. Railroad, 133 Mo. 587; Morgan v. Railroad, 159 Mo. 262; Fearons v. Railroad, 180 Mo. 222; Eppstein v. Railroad, 197 Mo. 720.
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, Missouri, by the alleged negligence of its servants and employees 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 eight o'clock p. m., was walking upon the said railroad track of defendant about three hundred feet east of the corporate limits of Pacific, and while so walking thereon, a certain west-bound freight train in charge of and operated by defenda...
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