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

• Decision Date: 22 December 1906
• Citation: 98 S.W. 566,200 Mo. 377
• Parties: FRYE v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

98 S.W. 566

200 Mo. 377

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

Supreme Court of Missouri. Division No. 1.

December 22, 1906.

1. RAILROADS — INJURIES TO PERSONS ON TRACK—CONTRIBUTORY NEGLIGENCE.

Under Rev. St. 1899, § 1105, requiring that in all suits for damages by those injured on account of walking on a railroad track they shall be deemed to have committed a trespass, it is negligence per se for one to walk upon a track.

2. SAME — CUSTOMARY USE OF TRACK — CARE REQUIRED.

Where the general public have been invited to use a railroad track by the tacit consent and long acquiescence of the company in permitting the open, known, free, and extensive use of the track by pedestrians, it owes a duty to pedestrians to use ordinary care to protect them from being injured by trains.

3. SAME—EVIDENCE—SUFFICIENCY.

In an action against a railroad for injuries to one run over while walking on a track in the nighttime, evidence considered, and held sufficient to show that defendant had no notice that the track was so used.

4. SAME—CARE REQUIRED AS TO TRESPASSERS.

The operatives of a railroad train owed no duty to one walking on the track in the nighttime at a place where the track was fenced and in the vicinity of signs warning people to keep off the tracks, where there was nothing to show that notice of any use of the track by pedestrians in the nighttime had been brought to the attention of the company.

5. EVIDENCE — RES GESTÆ — DECLARATIONS AFTER EVENT.

In an action for injuries to one who was run over while walking on the track in the nighttime, on the question as to whether he was seen by the engineer, evidence that at the next station the engineer stated that he had knocked a man off the track was not admissible as part of the res gestæ.

6. RAILROADS—PERSONS ON TRACK—CARE REQUIRED AS TO TRESPASSER.

As against a trespasser walking on the track in the nighttime, the fact that the headlight was not burning was not negligence.

7. PLEADING—DEFECTS IN PETITION—WAIVER.

Where, in an action against a railroad for injuries to one walking on the track, the petition alleged that plaintiff was so walking with the permission of defendant by long use and custom, and the case was tried on the theory that the permission arose from long "public use," the insufficient averment was not fatal.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Action by George H. Frye against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Martin L. Clardy and James F. Green, for appellant. V. V. Ing, Almon Ing, and M. R. Smith, for respondent.

LAMM, J.

George H. Frye sued defendant railway company in the circuit court of Wayne county for $20,000 damages for personal injuries. A jury awarded him $5,000, and, from a judgment entered on that verdict, defendant appeals.

At the close of plaintiff's evidence in chief, and again at the end of the case, defendant demurred, and, its demurrer in each instance being disallowed, it saved exceptions. As defendant did not stand on its demurrer at the close of plaintiff's case, but produced its own evidence, it must be held to have waived the first demurrer, and the open question on this behalf is on the court's disposition of the last demurrer—the correctness of that ruling depending upon all the evidence.

Attending to the facts, on the part of plaintiff it was shown that he was 35 years old and, with his wife and two children, lived at Mill Springs, a little hamlet of 200 or 300 people on the line of defendant's road in Wayne county. Say 1¼ miles north of Mill Springs was another way station, Leeper. Leeper was a village of 400 or 500 souls and there seems to have been a rather extensive sawmill there, using hands in the mill and millyards. At the time in hand, some 8 or 10 of these employés lived at Mill Springs, among them plaintiff. Plaintiff had been employed a year or so as a roustabout in such yards. Defendant's road between said stations is a straight line, and the grade is a slight upgrade to the north. Parallel with this portion of defendant's track and adjacent to defendant's right of way is a public, dirt road also connecting Leeper and Mill Springs. The wind before daylight on the morning of February 16, 1903, was blowing a gale from the north and the weather was freezing cold—the petition alleging it was "very cold." From the description of the weather and the hour given by witnesses, we infer the night was uncommonly morose and bitter, the darkness being such as indicated by the proverb, "The darkest hour is that before dawn," being deepened in this instance by heavy clouds. Moreover, there was a snowstorm raging, accompanied by rain—the snow and rain being driven with vehemence to the south by a north wind. Plaintiff's description of the night just before day is as follows: "The snow was falling and the wind was blowing; it was snow and rain mixed together and there was some snow on the ground. It was very cold weather, as we generally have here." At another place plaintiff testified it was "slick," and again was inquired of by his counsel as follows: "Q. You say it was snowing very heavy that morning?" To that inquiry he answered: "Tolerably heavy. Q. Wasn't it a very thick cloud? A. Yes, sir." At another place he says: "There was some snow and a mist of rain." A witness for plaintiff described the weather as follows: "Q. What kind of a morning was that? A. It was about as bad a morning as a person hardly ever sees. Q. Was it snowing? A. Yes, sir. Q. From what direction? A. From the north." Another witness, Captain Leeper, who impresses us as a very fair witness, testified the fury of the storm had not abated at 7 a.m.; that the snow was falling very fast that morning, and the wind was blowing. He lived on the public road before referred to, and about a half mile from Leeper. He took the railroad track at his home that morning at 7 o'clock to go to the latter town, and says he passed within 30 yards of where Mr. Frye must have been, and looked down that way; that is, to the south. He saw a man standing on the track; that is, could see his form but couldn't form any idea of who it was, and we take it his inability to recognize that man (who seems to have been an acquaintance of his) and his failure to discover plaintiff was because of the blinding fury of the storm. Plaintiff left his home that morning at about 5:30 a.m., dressed in two coats, crossed the public road aforesaid and, as usual, took defendant's main line track for Leeper, on foot, to be on hand at 6 a.m. at the opening of the mill for work. When he entered on defendant's track, he looked and listened for an approaching train. Seeing and hearing none, he faced to the north, crossed the cattle guard at the crossing there, and, breasting the storm, traveled between the rails for a quarter of a mile, and then stopped and again looked and listened for a train. Still seeing and hearing none, he resumed his journey, neither stopping, listening, or turning his face again to look behind him, and, when about one-half of a mile from the crossing at Mill Springs and three-quarters of a mile of Leeper, he became conscious a train was coming on him from the rear. He heard no whistle or bell but heard what he described as a "humming noise," a "very small noise," a "little shake of the ground," and, so hearing, turned his head and found a locomotive engine on him. From that time on, he knew not a whit more, except that he was hit and thinks he was hit in the back. When daylight came he was found at about 7 o'clock hanging on the fence of the right-of-way, that is, standing and leaning over the right-of-way fence, unconscious, one of his legs broken just above the ankle, his back bruised, his hip bruised, his face wounded and disfigured, his hands frozen, and, as we understand it, his fractured leg frozen. As the result of his injuries, one of his legs is shorter than the other and his hands are mutilated by the amputation of at least some of his fingers. The first glimpse of consciousness he had was his overhearing a talk by his father-in-law about sending him to the Mullanphy hospital at St. Louis. This was about a week after he was hurt. As no question is raised over the extent of his injuries or the amount of damages recovered below, this part of the case need not be further pursued or developed.

It seems defendant's through passenger trains from the south did not stop at Leeper or Mill Springs, but did stop at Piedmont, a station a few miles north of Leeper. It seems there were two or three of these trains, grouped on the time schedule pretty close together, and, when on schedule time, passing Mill Springs in the small hours of the night, say, from 1 to 2 o'clock. Coming from afar, they were usually late at that inclement and treacherous season of the year. On the morning in question, the last of these trains was about three hours late, and was the one running plaintiff down. It seems plaintiff thought the night passenger trains had passed up north before he took the track, and he did not remember of ever meeting a passenger train at that time in the morning, but he was conscious at the time of the fact that he was likely to meet a train—witness his testimony: "Q. You knew the train would come along in a few minutes? A. Yes, sir; I knew there was trains coming along there at all times. * * * Q. Didn't you know that trains were liable to come along that way any minute? A. Yes, sir. Q. You say that is right, then? A. Yes, sir." Plaintiff was the only eyewitness testifying to the fact of his being struck by the locomotive of a north-bound passenger train. So far as defendant's trainmen were concerned, they testified none of them saw him, and none of them knew of the accident at the time, and none of them heard of it until notified a fortnight or so afterwards. The testimony of the engineer and fireman, just referred to, must be...