Hall v. Missouri Pacific Railway Company

• Decision Date: 13 April 1909
• Citation: 118 S.W. 56,219 Mo. 553
• Parties: ERRETT HALL, by ELI A. GREAVES, Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

118 S.W. 56

219 Mo. 553

ERRETT HALL, by ELI A. GREAVES, Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 13, 1909

Rehearing Denied 219 Mo. 553 at 592.

Appeal from Johnson Circuit Court. -- Hon. W. L. Jarrott, Judge.

Affirmed.

Martin L. Clardy and R. T. Railey for appellant.

(1) Plaintiff at time and place of accident was neither a passenger, employee, nor licensee, but a trespasser. The court below tried the case upon this theory, as will be seen upon an inspection of instruction 1 given at instance of plaintiff, and instruction 1 given at instance of defendant and the case should be disposed of in this court accordingly. O'Donnell v. Railroad, 197 Mo. 110; Feeback v. Railroad, 167 Mo. 206; Stringer v. Railroad, 96 Mo. 206; Sherman v. Railroad, 72 Mo. 62; Snyder v. Railroad, 60 Mo. 413; 3 Elliott on Railroads, sec. 1305. (2) The engineer testified positively that he never saw plaintiff before the accident and he did not know he was on the car. The engineer likewise testified that he didn't know the pole car was too close to track when he kicked the cars in on north track. The plaintiff testified that when the brakeman saw the cars coming in on north track were going to strike the pole car, he gave a signal to stop. It thus clearly appears that the brakeman believed up to this time that the pole car was in the clear and especially so as he was some distance away. The engineer and fireman both say that the cars were kicked in on the north track and were detached from the engine. The engineer testified that, after he received a signal from the brakeman to stop, he did stop and then saw the dust fly from the pole car which was struck. When he stopped the cars which had been kicked onto the north track were ten or fifteen feet from the cars attached to engine. There is nothing in the record tending to show that the cars kicked onto north track -- and which were to be left there -- were sent back with more force than was necessary to carry them to the proper place north of the depot, or that any damage would have been sustained if the pole car had been cleared. The crew were in the defendant's private switch yards, attempting in good faith to transact the business of their principal. Plaintiff was a trespasser and had no legal right to be there, and especially upon this car. Both the engineer and brakeman swear positively that they did not know he was on the pole car. Plaintiff was practically fifteen years of age at the time of this accident. He had had more than five years' experience as a train jumper, and seems to have been expert enough to climb on and off moving trains successfully. According to his own testimony, he was watching the brakeman, the engineer, the cars and everything connected with switching in said yard. He was standing on the east end of the pole car, in broad daylight, with his face toward the locomotive and moving cars, and with the tracks and their relative positions directly in front of him. In other words, plaintiff, with years of experience in that business, with the physical surroundings in plain view and only a few feet off, never thought of the cars colliding until they were right on him, yet it is claimed the brakeman, who was one hundred and eight feet away, and the engineer, who was more than two hundred and fifty feet away, ought to have known that said car was too close and that plaintiff was there. Or, in other words, that the engineer and brakeman were guilty of either wanton, willful or reckless conduct, in respect to plaintiff, although they both swore they did not know he was there, nor that the car was too close. We therefore insist that plaintiff has signally failed to make out even the semblance of a case. O'Donnell v. Railroad, 197 Mo. 110; Carr v. Railroad, 195 Mo. 214; Chaney v. Railroad, 176 Mo. 598; Wencker v. Railroad, 169 Mo. 592; Feeback v. Railroad, 167 Mo. 206; Berry v. Railroad, 124 Mo. 223; Stringer v. Railroad, 96 Mo. 299; Sherman v. Railroad, 72 Mo. 62; Snyder v. Railroad, 60 Mo. 413; 3 Elliott on Railroads, sec. 1305; Sterger v. Van Sicklen, 132 N.Y. 499; Cusic v. Adams, 115 N.Y. 55; Morris v. Brown, 111 N.Y. 330; Larmore v. Iron Co., 101 N.Y. 391; McVeety v. Railroad, 45 Minn. 268; Powers v. Railroad, 153 Mass. 188; Railroad v. Roach, 83 Va. 375; Railroad v. Brooks, 81 Ill. 245; McGauley v. Railroad, 93 Ala. 356; Flower v. Railroad, 69 Pa. St. 210; 2 Thompson on Neg., secs. 3320, 3321; 2 Woods, Ry. Law, pp. 1044-5; Mathews v. Bensel, 51 N. J. L. 33; Ray's Negligence of Imposed Duties, pp. 22-3; Sweeney v. Railroad, 10 Allen (Mass.) 368; Heinlein v. Railroad, 33 A. & E. R. R. Cases, 500 Mass; Burbank v. Railroad, 45 A. & E. R. R. Cases, 593. The engineer was not guilty of either wanton, willful or reckless conduct, in respect to any duty which he owed plaintiff as a trespasser or otherwise. Neither was he guilty of negligence of any kind or description, for he did not know plaintiff was on the pole car, nor did he know that the latter was too close to north track. He was attempting to perform his plain duty as expeditiously as possible under the circumstances, and in so doing was watching the brakeman, and relying on the signals which he gave. Hite v. Railroad, 130 Mo. 132; Farber v. Railroad, 139 Mo. 285; May v. Crawford, 150 Mo. 527; Koons v. Railroad, 178 Mo. 615; Higgins v. Railroad, 197 Mo. 317; Hendley v. Railroad, 106 Mo.App. 27; Ives v. Railroad, 107 N.W. 454; Felton v. Anderson, 66 S.W. 182; Railroad v. King, 51 S.W. 319. (3) The pole car may have run back toward the main track a few inches before stopping. When it stopped, the distance between the south rail of the north track and the rail on the south track was four feet. Plaintiff says that when the pole car was at the point aforesaid, the brakeman said to him, "Get up and set the brake," or words to that effect. The brakeman positively denies this, but on the contrary said that a short time before the accident he put plaintiff off the train and told him to keep away from said train; that plaintiff was upon said car without any authority or invitation and without the knowledge or consent of the brakeman. Plaintiff admits that he never set the brake on this car for he testified that he never set any brakes at any time but simply unloosed one. The brakeman then went onto north switch, opened same, and gave the engineer signals to back the train in order to kick the cars on north track which had been taken therefrom. It was evident that the brakeman thought this pole car was then in the clear of north track, as the south rail of north track was four feet from the south rail, or he would not have given the signal to back up the cars and cause a wreck, had he been aware of the situation. Plaintiff seems to have stayed on the car at the front end during all this time, and although everything was in plain view before him, he was not aware that the pole car was not in the clear until the backing cars were right on him. It seems that the brakeman -- according to plaintiff's evidence -- for the first time realized that the cars which were being kicked in on the north track could not pass the pole car, and he then gave the signal to stop. This was after he looked back and saw the situation. The engineer testified that upon receiving this signal to stop he applied the air and the head end of the train stopped; that the two sections of the train were ten or fifteen feet apart when he saw the dust fly off of the pole car. The foregoing facts, outside of the engineer's testimony in regard to what was done in backing the cars on the north track, were given by plaintiff himself at the trial. It cannot be said to be a mere matter of opinion, because he claims to have been standing on the east end of the pole car, within a few feet of the north track facing east, and so closely observant as to the situation that he even undertook to testify how the engineer acted, which direction he was looking, what the brakeman was doing, the kind of signals which were given, and everything else connected with the transaction. On the foregoing facts it is respectfully insisted as plaintiff was there without authority and as a trespasser, that as he was performing no duty, either on invitation or otherwise, the brakeman had no reasonable grounds for supposing that he would remain upon said car unnecessarily, even if he had requested him to get up and set the brake when the car was first placed there. The brakeman, however, testified that he was not aware of plaintiff's presence, and plaintiff himself having sworn that the brakeman attempted to stop the backing of the cars by proper signals after he saw the coal car was too close, how then could it be said that the brakeman violated any duty which he owed plaintiff under such circumstances? None of the train crew violated any duty which it owed to this plaintiff as a trespasser at the time and place of accident. Authorities cited under last proposition.

O. L. Houts, Walter L. Lampkin and Charles E. Morrow for respondent.

(1) The conductor ordered the brakeman to take plaintiff and do the switching and the brakeman ordered plaintiff to get on the car and set the brake. Under all the authorities plaintiff was not a trespasser. He was a licensee. The court erred in instructing the jury that he was a trespasser. O'Donnell v. Railroad, 197 Mo. 122; Wencker v. Railroad, 169 Mo. 599; Houck v. Railroad, 116 Mo.App. 572. Instruction 1 given for plaintiff did not declare him to be a trespasser. Plaintiff did not adopt this theory at the trial. The court, at the instance of defendant gave instruction 1, which so declared. To this action of the court plaintiff excepted. Plaintiff being a licensee, it was the duty of the defendant's servants to look for...