Hufft v. St. Louis & San Francisco Railroad Co.
| Decision Date | 12 July 1909 |
| Citation | 121 S.W. 120,222 Mo. 286 |
| Parties | OPAL HUFFT, by Next Friend, JOHN HUFFT, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded.
W. F Evans and Woodruff & Mann for appellant.
(1) Defendant's instruction in the nature of a demurrer should have been given and the case taken from the jury. (a) Because plaintiff was a trespasser in defendant's private switchyards. R. S. 1899, sec. 1105; Jackson v Railroad, 157 Mo. 621. (b) Defendant's engineer had a right to presume that he had a clear track and that the yard would be clear of trespassers while he was doing the switching therein, and was not responsible to plaintiff, who was a trespasser, for failure to be on the alert to discover him. Callahan v. Railroad, 71 Mo. 117; Fearons v. Railroad, 180 Mo. 223. (c) Plaintiff being a trespasser, and defendant's engineer having no occasion to be on the lookout for him, the engineer could not be held to any duty to stop the train and prevent the injury until he saw or actually knew of plaintiff's perilous position or, at least, until he actually saw the stop signal given by the brakeman. Fearons v. Railroad, 180 Mo. 208; Carrier v. Railroad, 175 Mo. 470; Zumalt v. Railroad, 175 Mo. 288; Barker v. Railroad, 98 Mo. 50; Yarnall v. Railroad, 75 Mo. 575; Swigert v. Railroad, 75 Mo. 475; Feebach v. Railroad, 167 Mo. 207. (d) And since plaintiff was a trespasser, it cannot be said that defendant's engineer owed him any duty to be on the lookout for the stop signal of the brakeman. Frye v. Railroad, 200 Mo. 407; Barker v. Railroad, 98 Mo. 54; Cooley on Torts, 660. (e) The evidence introduced by plaintiff attempting to show such a user of defendant's tracks by the footman traveling across the same, showed, at the most, only the use of the same by footmen in sporadic cases; did not locate such use at the place of the accident, and utterly failed to show that such use or pretended use of the tracks was ever within the knowledge or with the acquiesence or consent of the defendant company, and was insufficient to rebut the presumption to which the engineer was entitled of a clear track. Frye v. Railroad, 200 Mo. 401; Eppstein v. Railroad, 197 Mo. 732. (2) Instruction 1, given by the court for the plaintiff, is erroneous and the error is prejudicial and fatal, because it tells the jury that if they find from the evidence defendant's engineer could by the exercise of reasonable care have seen the signal given by the brakeman in time to stop the train and avert the injury complained of and did not do so, their verdict should be for plaintiff. (a) Said instruction is erroneous because if plaintiff was a trespasser, as is contended by defendant, the engineer owed him no duty until he actually saw the stop signal and knew of the danger. Cases supra. (b) Because the right of the engineer to rely upon the presumption of a clear track must be removed by testimony of plaintiff showing such a user of the track at the place of the injury by the public, with the knowledge of defendant company, as would, under the circumstances of this case, require the engineer, as a man of ordinary prudence, to reasonably anticipate the presence of some one on the track before the burden of ordinary care in looking out for him can be imposed upon the engineer. Eppstein v. Railroad, 197 Mo. 720; Fearons v. Railroad, 180 Mo. 223. (c) Because the question as to whether there had been such a user of the tracks by the public at the place of the accident, with the knowledge of the company, as would rebut the presumption of a clear track and require ordinary care in looking out on the part of the engineer, is not a question of law to be determined by the court, as is done by this instruction, but a question of fact to be determined by the jury under proper instructions. The said instruction is, therefore, erroneous, because in it the court assumes, as a matter of law, that there was such a user of the track, and invades the province of the jury, which should have been first required to find from the evidence that there had been such a user before it could find a verdict for plaintiff based upon the failure of the engineer to use ordinary care. Eppstein v. Railroad, 197 Mo. 734; Morgan v. Railroad, 159 Mo. 270; Ahnefeld v. Railroad, 212 Mo. 300; Fearons v. Railroad, 108 Mo. 208; Everett v. Railroad, 112 S.W. 494; Chamberlain v. Railroad, 133 Mo. 603; Lemay v. Railroad, 105 Mo. 367.
Mayfield, Vernon, Curry & Mayfield for respondent.
(1) Under the evidence, as submitted, it was proper to submit the case to the jury. The evidence was amply strong and sufficient to pass to the jury, and the doctrine is too well settled for dispute in this State that where there is any evidence tending (however light) to prove the allegations, it is error to take the case from the jury. This case shows wanton negligence. Woods v. Railroad, 188 Mo. 229; Moody v. Deutsch, 85 Mo. 243; Reardon v. Railroad, 114 Mo. 403; Lynch v. Railroad, 208 Mo. 21. Besides, evidence of this kind need not be direct and positive; it may be inferred from the surroundings. Woods v. Railroad, 188 Mo. 229; Rine v. Railroad, 100 Mo. 228; Lynch v. Railroad, 208 Mo. 21. (2) Appellant misconstrues the law and the theory of this case. It is clearly under that class of cases supported by the following authorities: Woods v. Railroad, 188 Mo. 229; Brown v. Railroad, 50 Mo. 461; Dunkman v. Railroad, 95 Mo. 245; Fielder v. Railroad, 107 Mo. 652; Reardon v. Railroad, 114 Mo. 404; Chamberlain v. Railroad, 133 Mo. 596; Morgan v. Railroad, 159 Mo. 280; White v. Railroad, 202 Mo. 562; Ahnefeld v. Railroad, 212 Mo. 303. (3) Courts should not and do not encourage continued litigation. The verdict was for the right party and should be sustained. Besides, every presumption is in favor of the finding of the lower court. These principles are fundamental.
This is an action for personal injuries brought by Opal Hufft, a minor fifteen 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, Missouri, 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 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, Revised Statutes 1899, to block or fill the switches, frogs and guardrails 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 agent 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." That 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., nine 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, and (2) a 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, Missouri, going east. The defendant company maintained at Lebanon a...
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