Hufft v. St. Louis & S. F. R. Co.

• Decision Date: 01 July 1909
• Court: Missouri Supreme Court
• Parties: HUFFT v. ST. LOUIS & S. F. R. CO.

121 S.W. 120

222 Mo. 286

HUFFT v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

Rehearing Denied July 12, 1909.

1. RAILROADS (§ 358) — INJURIES TO PERSONS ON TRACK — FAILURE TO BLOCK SWITCH FROGS.

Under Rev. St. 1899, § 1123 (Ann. St. 1906, p. 970), requiring railroad companies to block all switch frogs and guard gates on their roads in all yards, divisional and terminal stations, and where trains are made up, a railroad company is not liable to a person crossing the company's switchyard who was injured by having his feet caught in an unblocked frog as he was but a bare licensee, and the company owes no duty to trespassers and bare licensees to block its frogs, either under the statute or common law.

2. NEGLIGENCE (§ 2) — NATURE AND ELEMENTS OF NEGLIGENCE — DUTY.

There can be no negligence in the absence of any duty.

3. RAILROADS (§ 357) — INJURIES TO PERSONS ON TRACKS — NEGLIGENCE.

If a person injured on a railroad track is at a place where the company has no right to expect a clear track, the duty would be upon its servants to look out for persons upon the track, and, if a person injured might have been seen in a perilous position in time to have prevented the injury by the exercise of ordinary care upon the part of the defendant, its agents and employés, then defendant is liable, whether such employés actually saw him or not, but, if the person is where the company is entitled to expect a clear track, before liability for his injury can be shown, he must show that he was actually seen in a position of peril by defendant's servant in time to have prevented the injury by the exercise of reasonable care and caution after such perilous position was seen.

4. TRIAL (§ 251) — INSTRUCTIONS — APPLICABILITY TO CASE.

Instructions must not only be within the scope of the evidence, but they must be within the scope of the petition.

5. RAILROADS (§ 401) — INJURIES TO PERSONS ON TRACKS — ACTIONS — INSTRUCTIONS.

Plaintiff's foot was caught in an unblocked frog while attempting to cross defendant's yards at a point where there was no public crossing, and a train was backed down upon him by an engineer who at the same time was watching for a train which was approaching on the main track. The court instructed that the engineer did not owe plaintiff the sole duty of keeping a lookout for the stop signals when he was backing his engine and cars, and that, if the jury believed that another train was approaching his train on the same track, it was his duty to look out for it, and that if they believed that the engineer was exercising ordinary care to discharge both the said duties in backing his train, and while exercising both duties with ordinary care he stopped his engine and cars as he saw the stop signals given by the brakeman who saw plaintiff's peril, then the verdict must be for defendant. Held, that the instruction was erroneous as, if the place of injury was where the engineer had the right to expect a clear track, his failure to promptly heed the stop signals would not be negligence, as such signals would not contemplate plaintiff's presence at that point; plaintiff being but a bare licensee.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Opal Hufft, by next friend, John Hufft, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. F. Evans and Woodruff & Mann, for appellant. Mayfield, Vernon, Curry & Mayfield, for respondent.

GRAVES, J.

This is an action for personal injuries brought by Opal Hufft, a minor 15 years old at date of accident, by his next friend, John Hufft, to recover of the defendant the sum of $20,000 for injuries alleged to have been received through the negligence of the defendant. The petition is in two counts. On the night of June 23, 1905, at about 9 o'clock p. m., plaintiff, in company with another boy, was crossing the switchyards of the defendant in the city of Lebanon, Mo., and caught his right foot in the frog of a switch, and while he was so fastened a backing train, then switching in said yards, ran over plaintiff in such a way as to make it necessary to amputate his said right foot and leg. In the first count of the petition plaintiff alleges as negligence against the defendant a failure under section 1123, Rev. St. 1899 (page 970, Ann. St. 1906), to block or fill the switches, frogs, and guard rails in its said switchyard with the best known appliances to prevent the feet of persons from being caught therein. By the second count, which plaintiff denominates as his "common-law action," he charges as negligence a violation of the said section 1123 in the first count suggested. Then he further charges that after plaintiff's foot was caught and fastened in said switch, and while he was in this perilous situation, "the defendant's agents and servants there and then in charge of said engine and cars, as above described, could and should have by the exercise of reasonable care and caution on their part prevented said injury, in that they could and should have discovered this plaintiff in this perilous position in time to have avoided same, and could and should have by the exercise of reasonable care and caution stopped said engine and cars in time to have avoided injuring the plaintiff." Such failure was negligence upon the part of defendant. As a third ground of negligence, it is charged that defendant operated said engine and cars at the time — i. e., 9 o'clock p. m. — without having a flagman, brakeman, or other person on the rear end of said car which was so pushed over the foot and leg of plaintiff. It is averred in the second count of the petition that at the time plaintiff's foot was caught he was traveling along said railroad in said switchyards in a path which for many years had been used as a roadway and footpath by travelers by the forbearance and tacit consent of the defendant. Defendant's answer to the first count was (1) a general denial; (2) plea of contributory negligence. The answer to the second count was of the same character. Reply in the nature of a general denial. Before going to the jury, plaintiff elected to stand on the second count of his petition, and dismissed the first count thereof. By a verdict of the jury he was awarded damages in the sum of $5,000, upon which judgment was rendered against the defendant, and from which defendant after unsuccessful motions for new trial and in arrest of judgment has appealed to this court.

The necessary facts in this case may be stated briefly as follows: Defendant's railway passes through the city of Lebanon, running east and west. One of its freight trains came in from the east and going west reached Lebanon at about 8:10 in the evening of the date of the accident. This train pulled in on what is known as the "passing track," which was the track north of the main track. The conductor thereof went to the station, and there obtained information as to what switching was to be done. It also appears that at about that time there was due a regular freight train from Springfield, Mo., going east. The defendant company maintained at Lebanon a switchyard in which there were eight or ten or more tracks. On the south side of the main track were two tracks — one known as a "tank track" and the other as a "stock track." The tank track left the main line at the switch which was farthest west in this switchyard. From this tank track the stock track branched off. Upon the evening in question the crew in charge of this special freight train, being desirous of taking into this train a certain car of beer, cut loose its engine, thus leaving its cars standing on the passing track, and ran the engine down from the passing track to the main track, and then back through the switch to the tank track, and from the tank track to the stock track to get its car. To so do it became necessary to couple onto the engine five cars, and, when this was done, the engine and cars pulled west from the stock track to the tank track, and thence to the main track and out onto the main track. Such was the action of the train in question. Now as to the action of the plaintiff. As we take it from the evidence, the plaintiff and his companion, Jesse Easley, had been on the north side of the railroad tracks, and were desirous to go to a point where they were drilling a well south of the railroad tracks and in the vicinity of the switch frog, whereat plaintiff was afterwards injured, and with this end in view crossed defendant's railroad tracks and went to said well. At the time they knew that switching was being done by this train in the yards. Plaintiff also knew that switching was continuously being done in these yards in the making up of sundry trains therein. After remaining at the well a short time, plaintiff and his companion concluded to return home. They had observed the engine and cars passing down to the west. To the west of them, as we gather from the meager testimony before us, there was a regular street crossing, but plaintiff and his companion started across the tracks from the well without going to the public crossing. Easley was somewhat in advance of plaintiff, and got across the track, when he heard a distressed call from plaintiff. He came back and discovered the plaintiff's foot was fastened in the switch frog, and, according to his testimony, he notified a brakeman. The car had stopped about 43 feet from the frog, but was moving backwards at the time. He says the brakeman immediately gave a stop signal to the engineer and ran to the plaintiff; that he undertook to get plaintiff's foot out of the frog, and, finding himself unable, he loosed plaintiff for a moment and gave a second stop signal to the engineer; that, seeing the train still approaching, the brakeman came back to plaintiff, took hold of him, and removed him from the track as far as possible, and while he was thus holding him one...