Gurley v. The Missouri Pacific Railway Company

• Decision Date: 24 May 1894
• Citation: 26 S.W. 953,122 Mo. 141
• Parties: Gurley v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

26 S.W. 953

122 Mo. 141

Gurley v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from Bates Circuit Court. -- Hon. James H. Lay, Judge.

Affirmed.

H. S Priest and H. G. Herbel for appellant.

(1) The court erred in admitting the testimony of the witnesses, F D. Mers and Geo. H. Short, regarding the custom of defendant's employees to give signals when placing cars on the house track, and of plaintiff regarding his loss of earnings and of plaintiff and his witnesses Drs. Cundiff Shuttleworth and Grant regarding the paralysis of his arm, against the objections of defendant. Gahagan v. Railroad, 1 Allen, 187; Tenney v. Tuttle, 1 Allen, 186; Field v. Railroad, 76 Mo. 614; County v. Railroad, 22 S.W. 572; Mellwitz v. Railroad, 62 Hun, 622; Railroad v. Hurley, 12 S.W. 226; O'Leary v. Rowan, 31 Mo. 119; State v. Blackwell, 51 Mo. 319; Morgan v. Durfee, 69 Mo. 479. (2) The court erred in overruling the demurrers to the evidence interposed by defendant at the close of plaintiff's case and of the whole evidence. Gurley v. Railroad, 104 Mo. 228; Ruschenburg v. Railroad, 109 Mo. 117; Corcoran v. Railroad, 105 Mo. 399; Hudson v. Railroad, 101 Mo. 13; Kelly v. Railroad, 88 Mo. 547; Hixson v. Railroad, 80 Mo. 340; Stilson v. Railroad, 67 Mo. 671; Hickman v. Railroad, 47 Mo.App. 73; O'Donnell v. Railroad, 7 Mo.App. 192; Railroad v. Plaskett, 47 Kan. 107; Flynn v. Railroad, 53 N.W. 494; Bird v. Railroad, 48 N.W. 691; Andrews v. Railroad, 46 Am. and Eng. Railroad Cases, 171; Railroad v. Pinchin, 31 Am. and Eng. Railroad Cases, 592; Lewis v. Railroad, 38 Md. 588. (3) The court erred in giving the instructions asked by plaintiff. Field v. Railroad, 76 Mo. 614; Dowell v. Guthrie, 99 Mo. 663; Yarnell v. Railroad, 113 Mo. 579; James v. Railroad, 107 Mo. 485; Gurley v. Railroad, 104 Mo. 228; Newman v. Railroad, 38 F. 819. (4) The court erred in refusing to give the instructions asked by defendant. Cases cited under point 2; Barker v. Railroad, 98 Mo. 50; Humbird v. Railroad, 110 Mo. 81; Davitt v. Railroad, 50 Mo. 305; Dowell v. Guthrie, 99 Mo. 662; Way v. Railroad, 34 Am. and Eng. Railroad Cases, 236. (5) The verdict is excessive and should have been set aside on defendant's motion. Sleete v. Railroad, 55 N.W. 137; McDowell v. Fraull, 53 F. 844; Hamilton v. Branfoot, 52 F. 390.

S. P. Francisco, Wm. L. Jarrott and A. A. Whitsitt for respondent.

(1) The railroad company, for more than ten years prior to the date of plaintiff's injuries, built and thereafter maintained a plank sidewalk leading from the Planters' House across the track where plaintiff was hurt to the defendant's depot. This was a continuation of the public sidewalk on Miller street. The public had, therefore, acquired an easement across defendant's side track, and plaintiff was not there as a trespasser. Zimmerman v. Snowden, 88 Mo. 220, 221; Autenrieth v. Railroad, 36 Mo.App. 254; Byrne v. Railroad, 104 N.Y. 362. (2) Even if the place where plaintiff was injured was not a public crossing, it does not follow that defendant had the right to negligently run its cars over persons who had been in the habit of crossing there. Greater care is to be exercised in running trains in towns and cities than is required in the country. Gurley v. Railroad, 104 Mo. 211. (3) The acquiescence of a railroad company in the habit of certain persons crossing at a place, amounts to a license, and imposes a duty upon said company, as to all persons so crossing, to exercise reasonable care in running its trains so as to protect them from injury. The sufficiency of the notice and warning required at such crossing is a question for the jury. Swift v. Railroad, 45 Am. and Eng. Railroad Cases, 180, 183. (4) The injury occurred at a place where the company had been permitting persons to cross its track, without objection, and the company after separating its cars at said crossing, had no right to close said opening without giving suitable and reasonable warning. This is true even if it should be held that the injury happened at a point remote from a public street or highway. Barry v. Railroad, 92 N.Y. 289; Byrne v. Same, 104 N.Y. 362; Phillips v. Railroad, 46 N.W. 543; Brown v. Railroad, 50 Mo. 461; Railroad v. Troutman, 6 Am. and Eng. Railroad Cases, 117; Herriman v. Railroad, 32 Am. and Eng. Railroad Cases, 37; Taylor v. Railroad, 28 Am. and Eng. Railroad Cases, 656. (5) If a railroad corporation so constructs a private crossing over its track, at a grade in a city, as to hold it out as a suitable place for footmen to cross, it is bound to use reasonable precautions to protect them while so crossing. Murphy v. Railroad, 133 Mass. 121; Sweeney v. Railroad, 92 Mass. 368. (6) In the case at bar the company for twenty years had used, and by implication had invited the public to use, this sidewalk as a crossing and public passway from Miller street to its depot platform, and an obligation was imposed upon the company to see that it should not become a source of danger to those to whom it had held out as a passage or way through which they might safely go, and a duty was imposed upon the company of notifying persons entitled or invited to use it, in some unmistakable way, that it was about to be closed, before closing it. Railroad v. Fitspatrick, 35 Md. 38; Gillis v. Railroad, 59 Pa. St. 129; Kay v. Railroad, 65 Pa. St. 269. (7) Defendant signally "failed" to comply with the foregoing requirements, and was, therefore, guilty of negligence, which directly contributed to plaintiff's injury, and plaintiff was free from contributory negligence. Nichols v. Railroad, supra; Donohue v. Railroad, 91 Mo. 363; Ernst v. Railroad, 35 N.Y. 27; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Shearman & Redfield on Negligence [3 Ed.], sec. 31; O'Conner v. Railroad, 94 Mo. 157; Kennayde v. Railroad, 45 Mo. 261; Tabor v. Railroad, 46 Mo. 356; Louks v. Railroad, 31 Minn. 534. (8) The admission of evidence as to plaintiff's earning and loss of time under the allegation in the petition, was proper. Railroad v. Dale, 76 Pa. St. 47; City v. Campbell, 67 U.S. 592; Luck v. Ripon, 52 Wis. 196; Logansport v. Sustice, 74 Ind. 379; Metcalf v. Baker, 57 N.Y. 662; Geveke v. Railroad, 57 Mich. 589; Co. v. Nichols, 33 N. J. Law, 437; Stafford v. Oscaloosa, 64 Iowa 251; Nones v. Northouse, 46 Vt. 587.

OPINION

Gantt, P. J.

This is an action for personal injury. This is the third appeal in this court. Plaintiff obtained a verdict and judgment in the circuit court, on the first trial, for $ 10,000, and the judgment was reversed and remanded. 93 Mo. 445, 6 S.W. 218. The second trial resulted in a verdict for $ 15,000, and the judgment was reversed and the cause remanded. 104 Mo. 211, 16 S.W. 11. At this last trial plaintiff recovered judgment for $ 6,000, and defendant again appeals. Since the appeal was taken plaintiff has died, and his administrator, B. A. Bamard, has been duly substituted on the record.

The injuries of plaintiff were received at Pleasant Hill on the night of January 22, A. D., 1885. The place of the accident was in the most populous part of the city. The defendant's depot was located between the house track and the main line track of its railroad. The principal street of the city led from the resident portion of the town to the Planters' House. The Planters' House was located at the end of this street. Connected with this street, in the front of the Planters' House, was a wide, plank sidewalk leading from the end of Miller street at the Planters' House across defendant's house track, and connecting with the depot platform. This plank walk was a continuation of the sidewalk on Miller street. There were a number of cars standing on the house track during the entire day preceding the night of the accident. These cars were separated at this plank sidewalk so as to permit footmen to use this walk when crossing the railroad. The cars were separated over this walk leaving from three and one-half to four feet between the drawheads. They had been separated in this manner for several hours before plaintiff attempted to pass between them, and were separated immediately over this walk. A short time before plaintiff attempted to cross the railroad at this point, two ladies walked side by side over this walk and through this opening. The testimony tended to establish the fact that the cars were in this condition two minutes before plaintiff attempted to pass between them. The public had been using this plank sidewalk, and the company had been separating its cars at this point so as to permit the public to use this walk, for more than twenty years. More people passed over this walk than at any other railroad crossing in the city.

On the defendant's passenger train was the usual mail car and railroad postoffice. At the time of the injury plaintiff had started to the depot to deposit a letter on the mail car. He came from the resident portion of the town, and walked on this walk leading from the Planters' House until he reached this house track. When he reached the intersection of the railroad track by the plank walk, he stopped and looked and listened, he said, for the purpose of realizing whether there would be any danger in the effort to cross between the two cars, standing as we have above described them. He heard nothing, saw nothing, saw no headlight, no lamp signal, although the way was perfectly open in both directions up and down the track. He heard no noise of switching. He endeavored to accomplish the crossing as he got in between the cars, he heard a rattling noise, and was immediately crushed by the coming together of the two cars between which he endeavored to pass. Just as he stepped between the rails a switch engine was kicked and knocked...