Heard v. St. Louis-San Francisco Ry. Co.

• Citation: 16 S.W.2d 719
• Decision Date: 29 April 1929
• Docket Number: No. 16450.,16450.
• Parties: HEARD v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

16 S.W.2d 719

HEARD v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 16450.

Kansas City Court of Appeals. Missouri.

April 29, 1929.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

"Not to be officially published."

Action by Jesse Heard, by Lon Heard, next friend, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, Hale Houts, and I. M. Lee, all of Kansas City, for appellant.

Henry F. Poague, James H. Wilson, and W. E. Owen & Son, all of Clinton, for respondent.

BARNETT, C.

This is a suit for personal injuries. The evidence most favorable to plaintiff is to the effect that the defendant owns and operates a railroad track which terminates at the depot in the town of Deepwater, Mo. All trains back into the town upon this track after leaving the main line at a switch connection about one-half mile south of the depot. The track passes over a wooden bridge about 40 feet long, and there is a banister or railing upon the side of the bridge. There was a walk along the side of the track on this bridge, and the bridge and part of the track had for many years been used as a footpath. Plaintiff was about 18 years of age and was an employee at the Dickey clay plant, which was across the tracks from the main part of the town of Deepwater. After the evening dinner hour the plaintiff and two companions took a jug of wine into a pasture across the track from the main part of the town, where they indulged in certain conviviality, the details of which are not pertinent to the decision of this case. After the festivities the boys started home. The plaintiff became sick, due, according to his interpretation, to the fact that he had indulged himself by smoking a cigar, contrary to his usual practice. When he reached a point in his journey homeward which was upon the railroad right of way he lay down and went to sleep. At about 11 o'clock at night he woke up and his companions were gone. He went upon the path upon the railroad track at a point about 20 feet south of the bridge, walked across the bridge, and then he heard a noise, after which he was immediately struck by a railroad car, thus receiving serious injuries. Plaintiff's evidence indicated that it was customary when trains were backed into the town of Deepwater to operate an air whistle at the rear of the train, but that he did not hear any whistle that night. The plaintiff's evidence did not indicate how fast the train was going, nor whether any one of the employees of the defendant was upon the rear end of the train, nor within what distance the train could be stopped, but defendant introduced evidence to the effect that employees of the railroad company rode upon the rear end of the train and that they saw the plaintiff lying down after the train had come within 10 feet of his position. We take the following from the respondent's statement of the case, because we think it is a fair résumé of that part of the evidence with which it deals:

"No light was upon the back of the caboose to reflect along the track in front of the backing train to warn those upon the track and to give warning to the train crew of the presence of any one upon the track. Under the existing circumstances and equipment the trainmen could not see and know of the presence of any one upon the track until within just a few feet of him, and too late to stop the train or give warning to avoid the injury. Moving at 10 miles per hour the caboose in one second traveled 14 feet and a few inches."

The defendant's evidence indicated that there were two signal lights upon the rear of the caboose showing red to the rear and blue or green to the sides; that the three employees who rode upon the rear train platform each had a white lantern; that the train was running at a speed of about 10 miles per hour; that the application of the air brakes was the most practicable and the quickest way to stop the train after the plaintiff's position of peril was discovered; that they were looking forward and saw him as soon as they could see him, in the absence of a reflector or headlight upon the rear of the train; that it was not possible to signal the engineer to put on the reverse, and that the brakes could be applied more quickly from the rear than by signaling the engineer; that the train, at that time and place, traveling at the rate of 10 miles per hour, could not be stopped in less than 110 feet.

At the close of all the evidence the court, at the request of plaintiff, gave instruction No. 1, which is as follows:

"The jury are instructed that if you find and believe from the evidence that defendant's railway system was so constructed that south-bound trains connecting with the main line of the track leading to defendant's depot at Deepwater had to back down grade from said connection to the depot in said town, and that on the night of July 30, 1926, the plaintiff was struck and injured by the caboose of a train backing down said track from said connection towards said depot, and if you further find that along and in the vicinity of the place where plaintiff was struck by said caboose, and for a considerable distance south thereof, toward said approaching train and over and south of a culvert, floored on the east side of the rails, there was a pathway on and along defendant's tracks, and that said pathway had for many years been used and traveled by pedestrians generally in going to and from Deepwater town, and by them in going to and from the resident part of Deepwater to the Dickey tile works and Dickey brick plant, both lying across said railway tracks and on the east side thereof, and by persons in going from Deepwater to and returning from a swimming and skating pond, and that said pathway had been generally and continuously used by pedestrians by day and by night for many years prior to said injury to plaintiff, and that such use of said pathway had been known to the defendant for years, and that it made no objection to such use by pedestrians, and that such use was with its tacit assent, and that defendant, by its servants in charge of said backing train, might reasonably have expected to find persons on said track at said place, then it was the duty of defendant's agents and servants in charge of said train to use reasonable care and diligence to discover and warn pedestrians, on and near said track in a place of peril, of the approach of said train, and to give timely warning of the said approaching train by whistles or other loud and easily heard signal, and to repeat such signal or signals at frequent intervals while said train was backing along and over said pathway and if you find from the...