Hoops v. Thompson

• Decision Date: 14 June 1948
• Docket Number: 40847
• Citation: 212 S.W.2d 730,357 Mo. 1160
• Parties: Bertha Hoops and Jess Hoops v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

212 S.W.2d 730

357 Mo. 1160

Bertha Hoops and Jess Hoops v. Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a Corporation, Appellant

No. 40847

Supreme Court of Missouri

June 14, 1948

Rehearing Denied July 12, 1948.

Appeal from Butler Circuit Court.

Reversed.

M Walker Cooper for appellant.

(1) A railroad has no duty to maintain a lookout for trespassers on its property. If trespassers are actually seen the carrier must exercise due care to avoid injuring them; but until they are observed, no duty arises. Hamilton v. Ry., 250 Mo. 714, 157 S.W. 622; Wells v. Lusk, 188 Mo.App 63, 173 S.W. 750; Voorhees v. Ry., 325 Mo. 835, 30 S.W.2d 22; Burnes v. Joyce, 236 Mo.App. 725, 161 S.W.2d 655. (2) This rule of law is modified, however, by the tacit consent and long acquiesence of the carrier in the open, known, free, continuous and extensive use of its track by footmen, to the extent that the carrier owes a duty to such footmen to use ordinary care to look out for them and to use ordinary care to protect them from being run down and maimed or killed. Frye v. Ry., 200 Mo. 377, 98 S.W. 566; Eppstein v. Ry., 197 Mo. 720, 94 S.W. 967; Ducoulombier v. Baldwin, 101 S.W.2d 96; English v. Ry., 341 Mo. 550, 108 S.W.2d 51. (3) But mere occasional or sporadic instances of public user of a portion of a railroad track do not create the duty to keep a lookout. Eppstein v. Ry., 197 Mo. 720, 94 S.W. 967; Frye v. Ry., 200 Mo. 377, 98 S.W. 566; Alexander v. Railroad, 66 S.W.2d 573. (4) To bring a case within that rule (as modified by public user), the use established in the public may be likened somewhat to that giving rise to prescriptive right; i.e., the use must be a known use and must be confined to the limits proved. Frye v. Ry., 200 Mo. 377, 98 S.W. 566; Hufft v. Ry., 222 Mo. 286, 121 S.W. 120; Crossno v. Terminal Railroad Assn., 333 Mo. 733, 62 S.W.2d 1092. (5) Even though a sufficient user of a railroad track is shown to require those in charge of a train to keep a lookout for pedestrians, one who is sitting or lying upon or near the track at that point is a "trespasser" and those in charge of a train owe him no duty to stop or to take any steps to avoid injuring him until they actually see him and discover that he is a human being. Ayers v. Ry., 190 Mo. 228, 88 S.W. 608; Trigg v. Transit Co., 215 Mo. 521, 114 S.W. 972; Carpenter v. Kurn, 345 Mo. 877, 136 S.W.2d 997; Cochran v. Thompson, 347 Mo. 649, 148 S.W.2d 532.

Cope & Ponder, Tedrick & Tedrick and Phillips & Phillips for respondent.

(1) The evidence of uses of the bridge and pier by pedestrians both in the day time and night time was amply sufficient to show that trainmen were not entitled to expect a "clear track" at that point. Gray v. Wabash, 198 S.W. 1137; Jackson v. Mo. Pac. R. Co., 42 S.W.2d 932; Hendrick v. Kurn, 179 S.W.2d l.c. 721; Whiteaker v. Mo. Pac. R. Co., 28 S.W.2d 680, 15 S.W.2d 955; Rogers v. Frisco Ry., 31 S.W.2d 546; Feldman v. St. L., I.M. & S., 158 S.W. 88, 175 Mo.App. 629. (2) The question of whether or not it was the duty of defendant's engineer to look for pedestrians on the bridge drops out of the case for the reason that he testified that he always did look for persons on this bridge and that the reason he did not see plaintiffs was because, as he claimed, that they were not there. (3) Persons in charge of a railroad engine are chargeable with notice of everything coming within clear line of vision while looking out for persons between rails. Whiteaker v. Mo. Pac. R. Co., 28 S.W.2d 681; Hendrick v. Kurn, 179 S.W.2d l.c. 721; Whiteaker v. Mo. Pac. R. Co., 155 S.W.2d 955; Nicholson v. Frisco Ry., 51 S.W.2d 217; Railroads, Key No. 367. Beck v. Chicago, R.I. & P.R. Co., 37 S.W.2d 917, 327 Mo. 658; Scott v. Davis, 270 S.W. 433, 216 Mo. 530; Rogers v. Frisco, 31 S.W.2d 546. (4) Plaintiffs were in a position of imminent danger of being scalded by emission of hot water or steam from the engine, and which peril defendant's engineer saw, or could have seen in time to have prevented injuring them.

Clark, J. All concur, except Tipton, J., not sitting.

OPINION

CLARK

Respondents filed their petition in the circuit court alleging that, while they were sitting on a pier of a bridge on appellant's railway, they were scalded and burned by the negligent emission of hot water and steam from one of appellant's engines. A judgment in their favor was affirmed by the Springfield Court of Appeals. On appellant's application we have caused the case to be transferred here.

Appellant urges that the trial court erred in overruling motions for a directed verdict in favor of appellant at the close of respondents' case and at the close of the whole case; also that error was committed in the giving and refusal of instructions.

There is sharp conflict in the evidence, but a summary thereof most favorable to respondents is as follows: Appellant maintains a railway bridge extending east and west across Black River in the city of Poplar Bluff. On the east bank of the river and near the east end of the bridge the track rests upon a concrete pier extending about five feet beyond the south end of the ties. A short distance west of the pier steel beams or columns twenty inches wide slope upward on each side of the track and are connected by steel rods extending over the track at a height sufficient to permit the passage of trains. Similar beams are at the west end of the bridge. There was abundance of testimony that for a number of years many persons used the bridge to walk from one side of the river to the other. There was some evidence, more particularly mentioned hereafter, that at times persons sat upon the piers at the side of the bridge. The railroad maintained warning signs at each end of the bridge stating that "trespassing upon the tracks, bridge and right-of-way is positively forbidden," but there was testimony that the sign was not up at the east end of the bridge on the day respondents were injured.

On September 9, 1945, respondents, husband and wife, had spent some time near the bridge watching persons fishing in the river. After going to their home for the evening meal they returned to the bridge and sat on the east pier near the south side of the bridge. About nine p.m. a freight train came across the bridge from the west and, respondents testified, the engine began to emit steam and hot water when about ten feet from them and continued to do so until it reached and passed them, causing them to be scalded and burned.

Respondents introduced in evidence a rule of appellant stating that "blowing of locomotive boilers not equipped with blow-off cock mufflers is prohibited" at specified places, including bridges.

Appellant says the testimony fails to make a submissible case because there was no proof that the trainmen actually saw respondents. That, although the evidence of user of the bridge by pedestrians is sufficient to cast upon the trainment the duty to keep a look-out for persons on the track, there was no duty to look for persons sitting on the piers and such persons were trespassers. Appellant also says that violation of a self-imposed rule of the railway was not negligence per se.

From cases hereafter cited and others we glean the following fundamental rules of law. A railroad generally has the exclusive right to the use of its tracks. However, it has no right to expect a clear track at public crossings or at other places where it has actual or constructive notice that people are habitually using its track. To constitute constructive notice of such user, the use must be open and constant over such period of time as to raise the presumption that it is known to the employees of the railway. At places where there is no right to expect a clear track the railroad must keep a vigilant look-out; at all other places the railroad is liable only when its employee actually sees a person in danger in time, with the means at hand and with safety to himself and others in his charge, to avoid injuring such person. The requirement for such look-out is confined to the place of user and does not extend to other portions of the railway property. [Crossno v. Terminal Ry., 333 Mo. 733, 62 S.W.2d 1092; Eppstein v. Ry., 197 Mo. 720, 94 S.W. 967; Voorhees v. Ry., 325 Mo. 835, 30 S.W.2d 22; Cochran v. Thompson, 347 Mo. 649, 148 S.W.2d 532.]

In the instant case the evidence is sufficient to require the railway to keep a look-out for pedestrians crossing the bridge. Is the proof of user sufficient to require the railroad employees to keep a look-out for persons sitting on the pier where respondents were when injured?

For proof of public user of the pier, respondents rely upon the following witnesses. Jess Hoops, a respondent, said that "on a number of occasions" he had seen people using, standing or sitting on the pier. Mr McMurray, never saw anyone stopping or standing on the bridge. Henry Overfield, over a period of many years had seen a great many persons use the bridge, had seen them under it and fishing around it; "I have even seen the kids up on them piers." Ray Allard, had seen many people use the bridge at all times of the day and night, though there was a sign there ever since he could remember telling them not to use it. Never saw any one on the piers. Leonard Blackburn, said the warning sign was off the post and down in the weeds on the day respondents were injured. For a year and a half or two years he had seen people crossing the bridge and fishing near it; had seen kids jumping off the pier, but had never seen any one sitting on it. Eli Sliger's testimony as to seeing persons on the pier was excluded upon an objection that the question was leading. Nellie B. Scott, saw children jumping off the pier "many, many, many, many, times." That was some time in 1...