Isabel v. Hannibal & St. Joseph R.R. Co.

Decision Date31 May 1875
Citation60 Mo. 475
CourtMissouri Supreme Court
PartiesHERMAN ISABEL, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Appeal from Caldwell Circuit Court.

Carr & Leach, for Appellant.

I. The law requires railroad companies to enclose their roads with a fence where it passes along inclosed or cultivated fields, etc. The petition fails to show that Isabel was killed at a point embraced by any of the above requisitions.

II. For the first time the idea is advanced, that fences are erected to keep human beings from railroad tracks.

The objects of fencing railroads are simply the preservation of the lives of passengers, the property of the railroad companies, and to prevent stock from getting upon the track. And failure to fence is no proof of negligence, so far as it affects the case at bar.

III. The want of vigilance and care on the part of the grandmother was the direct, sole and absolute cause of the wrong complained of. If she had not been negligent in the discharge of her duty, the accident would not have happened.

It has been held negligence as a matter of law to allow a child of about two years to go into the streets unattended. (Hartfield vs. Roper, 21 Wend., 615; Callahan vs. Bean, 9 Allen, 401; Kreig vs. Wells, 1 E. D. Smith, 74; Mangum vs. Brooklyn R. R. Co., 36 Barb., 230; Glassey vs. Hestonville, etc., R. Co., 57 Penn. St., 172; Singleton vs. Eastern Counties R. Co., 7 C. B. [N. S.], 287; Boland et ux. vs. Missouri R. R. Co., 36 Mo., 484; Philadelphia & Reading R. R. Co. vs. Spearen, 47 Penn. St., 300; Holly vs. Boston Gaslight Co., 8 Gray, 123; Wright vs. Malden, etc., R. R., 4 Allen, 283.)

IV. It is unlawful for any one not connected with the road to walk along the track of any railroad. (Wagn. Stat., 311, § 43, last clause.)

An engineer is not bound to foresee the presence of any one on the track, even when it is open to an adjoining highway. (Shearm. & Redf. Neg., § 493; Philadelphia & Reading R. Co. vs. Hummell, 44 Penn. St., 375.)

M. A. Low, for Respondent.

I. It was not error to permit witnesses to testify that the railroad was not fenced at the place of the accident. If from the want of fence, accidents were more liable to occur at that point than would have been the case if the road had been fenced, and the company had notice of this fact, it was the duty of the defendant's employees to use more than ordinary care and diligence to prevent such accidents, and to run their trains with reference to such circumstances. (Schmidt vs. Milwaukee etc. R. R. Co., 23 Wis., 186; Singleton vs. Eastern, etc. R. R. Co., 97 Eng. Com. Law, 287.)

The disregard of the positive command of the statute was negligence (Karle vs. K. C., etc. R. R. Co., 55 Mo., 476), and the company were liable for all damages flowing naturally from such default. And regardless of the statute, it would seem that where a railroad company runs its road through a man's yard, where his children have the right to play, unrestrained, it ought to take all reasonable precautions to guard against injuring such children with its dangerous and destructive machinery. (See Railroad Co. vs. Stout, 17 Wall., 657; Britton vs. Great Western, etc. Co., L. R., 7 Exch., 130; S. C., 1 Eng. Rep., 381; Kay vs. Penn. Railw. Co., 65 Penn. St., 269; Lynch vs. Nurdin, 1 Q. B., 29; Bellefontaine R. R. Co. vs. Snyder, 18 Ohio St., 399; Railw. Co. vs. Bohn, 12 Am. Law Reg., 759, note.)

II. If defendant's employees, in charge of the train, by the exercise of ordinary skill and caution, could have observed the child upon the track, and recognized him as an infant, in time to stop the train before it ran over him, the company are liable, even though the guardian of the child may have been negligent in permitting it to wander upon the railroad track. (Cincinnati, etc. Rail. Co. vs. Smith, 22 Ohio St., 227; Richmond vs. Sacramento Rail. Co., 18 Cal., 351; Railroad Co. vs. Gladmon, 15 Wall., 401; O'Flaherty vs. Railroad Co., 45 Mo., 70; Boland & Wife vs. Missouri R. R. Co., 36 Mo., 484; Brown vs. Hann. & St. Jo. R. R. Co., 50 Mo., 461; Morrisey vs. The Wiggins Ferry Co., 43 Mo., 380; B. & O. R. R. Co. vs. Dougherty, 36 Md., 366; Bemis vs. Conn. etc. Rail. Co., 42 Vt., 375; Walsh vs. Miss. Trans. Co., 52 Mo., 434, Lynch vs. Nurdin, 1 Ad. & El. [[[N. S.], 28; Karle vs. K. C., etc., R. R. Co., supra; Berge vs. Gardiner, 19 Conn., 507; Bronson vs. Southbury, 37 Conn., 199; City vs. Kirby, 8 Minn., 169; Robinson vs. Cone, 22 Vt., 213; Whirley vs. Whiteman, 1 Head., 620; O'Flaherty vs. Union R. R. Co., 45 Mo., 70; Railroad Co. vs. Stout, 17 Wall., 657.)

The employees, in charge of a train, must use ordinary care and prudence to see and save even trespassing animals. (Rockford, etc. Rail. Co. vs. Lewis, 58 Ill., 49; Cincinnati etc. Rail. Co. vs. Smith., 22 Ohio St., 227; Bemis vs. Conn. etc. Rail. Co., 42 Vt., 375; Toledo, etc. Rail. Co. vs. Ingraham, 58 Ill., 120.)

The engineer, upon his own version of the matter, was guilty of gross negligence, in not slacking the speed of the train when he first saw the obstruction on the track at a point where children were in the habit of crossing. It is no excuse that he thought it was an animal. He was in doubt as to what it was, and ran recklessly along until it was too late to prevent running over it. (East Tennessee Railw. Co. vs. St. John, 5 Sneed, 524; Wright vs. N. Y. Cent. Railw. Co., 25 N. Y., 569; Regina vs. Longbottom, 3 Cox [C. C.], 439; Whart. Neg., § 802; Lafayette Railw. Co. vs. Adams, 26 Ind., 76; Chicago, etc. Railw. Co. vs. Cauffman, 38 Ill., 424; Railroad Co. vs. Spencer, 47 Penn. St., 300; Railroad Co. vs. Bami., 55 Ill., 226; Garner vs. Hann. & St. Jo. R. R. Co., 34 Mo., 235; Kerwhaker vs. C. C. & C. R. R. Co., 3 Ohio St., 172.)

WAGNER, Judge, delivered the opinion of the court.

This was an action by plaintiff to recover damages for the negligent killing of his infant son, by defendant, while running and managing a locomotive and train of cars on its railroad.

The evidence tended to show that plaintiff's wife being dead, he had placed the child in the care of its grandparents who resided about seventy-five yards distant from the road. The house was built before the railroad was constructed; but there was no fence intervening between it and the railroad. The grandmother, who had the care and custody of the child, which was only about twenty-one months old, testified that it was not permitted to go upon the railroad track, but sometimes played about the yard with the other children; that she prevented it from going out of the house as much as she could; that she kept it pretty close and never allowed it to go away; that it never had gone away before, and that on the morning on which it was killed, whilst she was temporarily absent, it slipped out of the house and went upon the track. It there sat down between the rails. The morning was bright and clear, and for eighty rods in the direction in which the cars were running, the track was straight and almost level.

The evidence of the plaintiff tended to show that the child might have been seen at least eight hundred feet from the place where it was run over and killed; and the testimony of the defendant's witnesses was, that it was seen in time to have stopped the train, but that it was mistaken for another object; and it was not discovered that it was a human being till the cars had approached too near to avoid the catastrophe.

Under the instructions of the court the jury found a verdict for the plaintiff.

The fifth and sixth instructions given for the plaintiff are the material ones and they alone will be noticed.

The fifth instruction declared, that though Isabel had no right to be on the track of defendant's railroad, yet, the fact that he was upon their property, did not discharge them from the observance of due and proper care towards him; nor, did it give defendants or their employees any right to run over him, if that could have been avoided by the exercise of ordinary care and watchfulness.

The sixth instruction told the jury that if they believed from the evidence that George A. Isabel, at the time he was killed, was a minor, under two years of age, that his mother was dead, that the plaintiff was his father, and that those in charge of defendant's train, by the exercise of ordinary skill and caution might have observed the child on the railroad track, and recognized him as an infant, in time to stop the train before it reached and ran upon him, they would find for the plaintiff, though they might believe from the evidence that plaintiff, or those having the child in charge, were guilty of negligence in not preventing the child from going upon the railroad track.

For the defendant the court gave four instructions, and those numbered six, eight and nine are the only important ones.

The sixth asserted that it was the duty of the parent or person having the custody of a child, at all times to shield the child from danger, and that duty was the greater where the danger and risk were imminent; and the degree of protection should be in proportion to the helplessness and indiscretion of the child, and the imminence of the danger.

The eighth declared that it devolved upon the plaintiff to show by the evidence, that the death of the child was occasioned by the negligence of the employees of defendant in charge of the train; and the fact that the child was killed at a point on defendant's railroad, shown in evidence, raised no legal presumption of negligence on the part of defendant or its employees.

The ninth told the jury that the use of a railroad track, except where a highway crosses it, is exclusively the right of the railroad company which owns it, and the company and its employees are under no obligation to anticipate that children will be sitting or playing on the track, but they have a right to presume that no one will be on the track, except where a highway crosses it; and if the jury should find from the evidence, that the employees of the...

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