Hyde v. Missouri Pac. Ry. Co.

• Citation: 19 S.W. 483,110 Mo. 272
• Court: Missouri Supreme Court
• Decision Date: 23 May 1892
• Parties: HYDE v. MISSOURI PAC. RY. CO.

19 S.W. 483

110 Mo. 272

HYDE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

NEGLIGENCE OF RAILROAD COMPANY — INJURY TO FOOT TRAVELER — LICENSE — EVIDENCE — NONSUIT.

1. Plaintiff, while walking at night on a track in defendant's yards, was hit by a freight car, moved without signals. Held, in the circumstances stated in the opinion, that plaintiff was properly forced to a nonsuit, because the facts disclosed no negligence on defendant's part.

2. Where pedestrians use a railroad track as a thoroughfare, despite posted notices and other warnings forbidding it, a license for such use is not established.

3. The constitutional declaration that railways are "public highways" does not authorize the use of tracks by foot travelers.

4. Where the evidence furnishes no substantial support to plaintiff's allegation of defendant's negligence, it is proper for the court to instruct the jury to find for defendant.

(Syllabus by the Judge.)

Error to circuit court, Pettis county; RICHARD FIELD, Judge.

Action by Hyde against the Missouri Pacific Railway Company for personal injuries. On a judgment for defendant, plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by BARCLAY, J.:

Plaintiff's action is for personal injuries caused by alleged negligence of defendant. It is met by a denial of the negligence, and a charge of contributory negligence on plaintiff's part. At a trial, the court instructed the jury that plaintiff was not entitled to recover; whereupon he took a nonsuit, with leave, etc. After unsuccessful motions to set that result aside, plaintiff appealed, in due course. His evidence established the following facts: The defendant's railroad passes through Sedalia nearly east and west. Engineer street, in that city, crosses the defendant's tracks at about a right angle. Several blocks east of Engineer street is a parallel street known as "New York Avenue," crossing the track at nearly the same angle. The plaintiff's house was east of New York avenue, in the triangle made by the tracks of the Missouri Pacific and the Missouri, Kansas & Texas Railways, near their intersection in Sedalia. There is no street crossing between Engineer street and New York avenue. Third street runs east and west nearly parallel with the railroad, a little distance south of it, at Engineer street, but intersecting the railway line before reaching New York avenue. The tracks are considerably higher than Third street. At the point of intersection the railroad is on an embankment about 12 feet high, and the street abuts against it, forming a large mud hole at that point, and making the adjacent street bad for travel in wet weather. On the north side of the railroad, east of Engineer street, is the train dispatcher's office. East and north of this are the Missouri Pacific shops, and east of these are the round-houses. Heard's addition to Sedalia lies north and east of the tract of land upon which these several railroad buildings are situated. It was admitted upon the trial that Sedalia was a city of 18,000 population. It was further shown that, at the time of the accident, people were, and for a long time prior thereto had been, in the habit of using the tracks of the railroad company between Engineer street and New York avenue as a common passway; that employes in the shops and roundhouse so used the same; and that persons not connected with the road, men, women, and children, also passed back and forth along these tracks at all times in the day. But it affirmatively appeared from plaintiff's evidence, in the same connection, that defendant had objected to such use of the tracks, had posted signs there warning people to keep off, and had had a special watchman to enforce those notices. Notwithstanding these objections, many people continued to use the tracks as a thoroughfare, as first stated. Plaintiff himself admitted that the place where he was run over was "what is known as the `Railroad Yards;' it was not on any street at all." The mishap took place about half past 8 or 9 o'clock P. M. of "a dark, drizzling, rainy night," in March, 1883. Plaintiff was a carpenter. On his way homeward he came upon defendant's line at the Engineer street crossing, and thence walked on the track eastward, some 200 yards, when he was overtaken and hit by a freight car moving in the same direction. It was one of a train of three box cars, pushed by a "pony" or switching locomotive at the west end of the train. The engine had a headlight, pointed eastward, but its rays were considerably shortened and obscured by the cars. There were three switchmen on the train; but the evidence fairly justifies the inference that none of them was on the lookout for persons on the track, or gave any warning to plaintiff of the train's...