Jackson v. Mo. Pac. Ry. Co.

• Decision Date: 14 August 1931
• Docket Number: No. 4796.,4796.
• Citation: 42 S.W.2d 932
• Parties: B.H. JACKSON, RESPONDENT, v. MISSOURI PACIFIC RAILWAY Co., APPELLANT.
• Court: Missouri Court of Appeals

42 S.W.2d 932

B.H. JACKSON, RESPONDENT, v. MISSOURI PACIFIC RAILWAY Co., APPELLANT.

No. 4796.

In the Springfield Court of Appeals. Missouri.

August 14, 1931.

Appeal from Circuit Court of Butler County. — Hon. Charles L. Ferguson, Judge.

AFFIRMED.

Thos. J. Cole and Dearmont & Russell for appellant.

(1) The court should have given to the jury defendant's demurrer to the evidence at the close of plaintiff's case at the close of all the evidence for the reason that the evidence clearly shows that the plaintiff cannot recover on account of his own negligence being the proximate cause of his injuries. Morrow v. Hines, 233 S.W. 493: Green v. R.R. 192 Mo. 131; Burge v. R.R., 224 Mo. 76; Osborne v. R.R., 179 Mo. App. 245, 256, 260: Lamm v. R.R., 216 Mo. 563. (2) The court should have given defendant's instruction telling them they could not consider the violation of the speed ordinance, for the reason that plaintiff's own testimony shows he knew the train was exceeding the speed limit, and this fact, if it was a fact, did not excuse him for his own negligence in not looking for the train. Lamm v. R.R., 216 Mo. 563; State ex rel. Peters v. Reynolds, 214 S.W., l.c. 123.

L.E. Tedrick and Phillips & Phillips for respondent.

(1) Appellant does not pretend that it was not guilty of negligence in running its passenger train at the point in question at a rate of speed prohibited by law and along a part of its track constantly used by pedestrians for forty or fifty years. The violation of a speed ordinance is negligence per se Unterlachner v. Wells, 296 S.W., l.c. 762; Kidd v. Railroad, 274 S.W. l.c. 1088; Gibson v. Frisco, 9 S.W. (2d) 85, (2) Plaintiff was not guilty of contributory negligence as a matter of law in walking between defendant's tracks on his way to work. Defendant's tracks and right of way, at the place in question had been used, as admitted by defendant at the trial, by pedestrians generally in going to and from their work for many, many years. White's Per. Inj. on Rys., p. 1633; Scullin v. Wabash, 184 Mo. 695; Ahnfeld v. Wabash, 111 S.W. 95; Garrett v. Wabash, 139 S.W. 252; Lemay v. Mo. Pac., 105 Mo. 361; Lynch v. Ry., 111 Mo. 601; Murrell v. Mo. Pac., 105 Mo. App. 88. (3) In the following cases the injured parties were caught between trains running on parallel tracks under circumstances strikingly similar to those of the case at bar, and in each case they were held not guilty of contributory negligence as a matter of law. Smith v. Chicago E.I. Ry., 163 Ill. App. 476; Harper v. Pittsburg, etc., Ry., 219 Pa. 368; Chicago, Rock Island & P. Ry v. Eddy, 228 Fed. 643, 11 N.C.C.A. 681; Chumm v. City & S. Ry., 207 U.S. 302, 28 Sup. Ct. 63, 52 L. Ed. 219; Cook v. St. L.I.M. & S. 179 S.W. 501, 120 Ark. 394; Lake Shore & M.S. Ry. v. Hotchkiss, 24 Ohio Cir. Ct. 431; Chicago Terminal Trans. Co. v. Schmelling, 197 Ill. 619, 99 Ill. 577; Christiansen v. Ill. Cent. Ry., 140 Iowa. 345; St. L.I.M. & S. v. Shaw, 94 Ark. 15.

BAILEY, J.

Plaintiff brought suit for damages arising out of personal injuries sustained by him when caught between two of defendant's trains running in opposite directions on defendant's tracks and in its yards within the city of Poplar Bluff, Missouri. The petition alleged that on July 12, 1929, plaintiff was walking between defendant's main track and one of its side tracks at a point on defendant's right of way habitually and constantly used for many years by pedestrians as a footpath. The negligence alleged is that defendant's agents and servants in charge of its north bound passenger train, negligently drove same at a dangerous rate of speed, contrary to and in violation of a certain ordinance of the city of Poplar Bluff limiting the rate to eight miles per hour. It is further charged that, as a result of said negligence, plaintiff was caught between said rapidly moving passenger train and a slowly moving freight train on said side track and was hurled with great violence against the sides of said train, sustaining the injuries complained of. The answer contained a general denial and a further plea that plaintiff's injuries, if any, were caused solely by the negligence of plaintiff in failing to look or listen for the approaching train and in walking too close to the moving freight train. On a trial to a jury the verdict and judgment was for plaintiff in the sum of $7000. Defendant appealed to this court which rendered an opinion during the October Term, 1930, affirming the judgment. Thereafter, a motion for rehearing was sustained there being some doubt as to the correctness of our conclusions on certain phases of the case hereinafter referred to.

Defendant makes no serious contention on this appeal that the plaintiff failed to make a prima-facie case of negligence. There was ample proof that defendant's train was, at the time and place in question, being operated in the city of Poplar Bluff at a rate of speed in excess of that permitted by ordinance. The violation of the speed ordinance was negligence per se. [Gibson v. Frisco, 9 S.W. (2d) 85.]

But defendant contends that the speed of the train was known to plaintiff and, therefore, the fact that defendant's train was exceeding the speed limit did not excuse plaintiff for his own negligence which, it is asserted, was the proximate cause of his injuries. Upon that theory defendant urges that the court erred in failing to give its instruction in the nature of a demurrer to the evidence.

When considering the propriety of giving such an instruction the evidence must be considered in the light most favorable to plaintiff and all plaintiff's evidence, if not beyond reason, accepted as true, while all the evidence of defendant in conflict therewith should be disregarded. [Compton v. Const. Co., 287 S.W. 474, 315 Mo. 1068; Holman v. Frisco, 278 S.W. 1000, 312 Mo. 342.]

Plaintiff's evidence tended to prove a state of facts about as follows: Plaintiff at the time he was injured was employed at defendant's round house located southeast of Poplar Bluff. On July 12, 1929, at about 7:00 A.M., plaintiff started walking from his home to his place of work. In going to work he had crossed a bridge over Black River which brought him to defendant's railroad tracks. These tracks consisted of a main line track and a number of passing and side tracks, all parallel to each other and running north and south. At a point about a quarter of a mile south of defendant's depot, which was west of the tracks, these tracks were crossed by a city street known as Henderson Avenue, near which point the accident occurred. Plaintiff had walked south between defendant's tracks from the depot to about the north side of this Henderson Avenue crossing, while at the same time a slowly moving freight train was on a south bound or side track to plaintiff's left. To his right was defendant's said main line north-bound track. The distance between the east rail of the north-bound track and the west rail of the south-bound track was eight or ten feet. When plaintiff reached the north side of Henderson Avenue he had arrived at a point where he would ordinarily cross the south-bound track, and other tracks to the east, in order to reach his place of work. Plaintiff testified in regard to the accident as follows: "I walked down the track nearly to the crossing and heard a whistle blow and looked up and it was the passenger train coming, it was about twenty feet from me, I guess. This freight train was just east of me. I was going the same way the freight train was going and it was right over to my left, and the passenger train was coming the other way on the track just west of the track the freight train was on. The freight was a long train — the one that cut me off. I was walking along the side of the freight train and we were both going south. The track which the passenger train was on was about seven or eight feet west of the track the freight was on. The box cars and coaches on these two trains are some wider than the tracks, I suppose — I heard a whistle and looked up and saw the passenger train coming, then I jumped over between the two trains. When the engine of the passenger train passed me the wind from the coaches drew my feet from under me and pushed me over against the freight train. The passenger train was going north and the freight train going south. I was walking between the tracks when I was pushed over. I don't remember if I had been on the track at all, but I was in between them at that time. I suppose I was seven or eight feet from the Henderson Avenue crossing when I first learned that a passenger train was coming. I was north of the passenger train about twenty-five feet, I guess, it was just below the crossing. Right below the crossing, the track curves around this way (indicating), going southeast, and the freight train cut me off from seeing any father down than just below the crossing. I suppose the passenger train was late, though I don't know what time it was due here. I did not know there was a passenger train about due when I started down there.

"Q. What was it that threw you against the freight train? A. It was the wind from the passenger train. The passenger train was going thirty or forty miles an hour. When it threw me up against the freight train, it knocked me down."

On cross-examination he testified that, "I don't know that the passenger trains go north on the east track and the south-bound trains on the west track. I have lived here four years, and had been working down there, but I don't know how long, I never kept account of it. I don't know which way these trains go, I never did keep track of that. I stopped when I got to Henderson Avenue. If I hadn't, I would have got killed. I stopped there before I saw any train at all. I was waiting for the freight train to pull out of the way so I could get across the track there. I did not go across Henderson Avenue, I was waiting for the caboose to get by so I could go on to my work. That was the best...