Kelley v. St. Louis-San Francisco Railway Company

• Decision Date: 02 March 1926
• Citation: 282 S.W. 480,219 Mo.App. 543
• Parties: JACK R. KELLEY, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Respondent.
• Court: Missouri Court of Appeals

282 S.W. 480

219 Mo.App. 543

JACK R. KELLEY, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Respondent.

Court of Appeals of Missouri, St. Louis

March 2, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon. George E. Mix, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

N Murry Edwards for appellant.

(1) Defendant's motion for a new trial was sustained upon the ground that the court erred in not giving the demurrer to the evidence at the close of plaintiff's case. The court in passing upon the evidence on demurrer thereto must view the evidence in the most favorable light to plaintiff, and plaintiff is entitled to every reasonable inference of fact which the whole record warrants. Knocke v. Pratt, 187 S.W. 578, 194 Mo.App. 300; Solomon v. Duncan, 185 S.W. 1141, 194 Mo.App. 517; Turnbull v. Dunham, 197 S.W. 1165, 272 Mo. 53; Maginnis v. Missouri Pac Railroad Co., 187 S.W. 1165, 268 Mo. 667; Peters v Lusk, 206 S.W. 250, 200 Mo.App. 372. (2) The evidence shows that defendant's tracks and right-of-way near its station were open and unfenced and that there was a footpath where plaintiff was surveying on defendant's tracks; that he was struck and injured by an object protruding about five or six feet beyond the side of defendant's passing train; that plaintiff had been surveying in the place in question for several weeks prior to his injury and his presence upon the defendant's tracks was with defendant's knowledge and consent; that the defendant had notice of the object protruding beyond the side of the train before it struck and injured plaintiff, having actually discovered it when the train was a mile and three-quarters away from the plaintiff and although defendant had ample time to have stopped its train and removed this protruding object, it failed to do so. Plaintiff made a case for the jury. Scott v. Davis, 270 S.W. 433; Hicks v. Railroad, 64 Mo. 430; Burns v. Railroad, 176 Mo.App. 330; Thompson v. Railroad, 243 Mo. 336. (3) Where persons are liable to be on a railroad track at a peculiar locality where the train is to pass, if known to the managers of the train, or they have reasonable grounds to expect it, whether such persons are there rightfully or wrongfully, imposes a duty upon the railroad to exercise ordinary care to prevent injuring them. M. Cassida v. Oregon Ry. & Nov. Co., 14 Ore. 55, 13 P. 441; St. L. S.W. Ry. Co. v. Wilcox, 57 Tex.App. 3, 121 S.W. 588; St. L. S.W. Co. of Texas v. Balthrop, 167 S.W. 246; Keim v. Gilmore & P. Ry. Co. , 23 Idaho 511, 131 P. 656; Grinshaw v. Lakeshore & M. S. R. Co., 205 N.Y. 371; Clampit v. Chicago St. P. & K. C. Ry. Co., 84 Iowa 74, 50 N.W. 673. (4) Plaintiff was upon defendant's tracks with its knowledge and acquiescence and was not a trespasser but a licensee to whom defendant owed the duty of exercising reasonable care in the management and operation of its train so as to avoid injuring him. Doyle v. Portland Ry. Light & Power Co., 143 P. 623; Teakle v. San Pedro L. A. & S. L. R. Co., 32 Utah 276, 99 P. 402; Anderson v. Great Northern Ry. Co., 15 Idaho 523, 99 S.E. 575; Troy v. Cape Tear & Y. Val. R. Co., 99 N-C, 298, 6 S.E. 77; Byrne v. New York Cent. & H. River R. Co., 104 N.Y. 362, 10 N.E. 539; Davis v. Chicago & New W. Ry. Co., 58 Wis. 646. (5) Where the railroad track by common custom, well established and acquiesced in, has long been used by the public as a footway, the presence of pedestrians thereon is naturally to be expected, and it is the duty of those in charge of trains passing over the track at such places to keep a lookout for them, and the statute which declares those not connected with the railroad to be trespassers if they walk on the track, etc., does not bar a recovery in such case. Murphy v. Railroad, 228 Mo. 56; Ahefeld v. Railroad, 212 Mo. 280, 303; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720; Morgan v. Wabash Ry. Co., 159 Mo. 262. (6) Where there is no actual or constructive notice to the defendant railroad company of an object protruding beyond the side of its train and there is no proof of what struck plaintiff who was walking along the side of the track, he cannot recover. Thompson v. St. L. Southern R. R. Co., 183 S.W. 631. In the case at bar there is ample proof that something protruding several feet from the side of defendant's train struck and injured plaintiff. Defendant had actual notice of the object protruding in ample time to have prevented the injury to plaintiff. (7) The verdict, judgment and the whole record in this case is regular. There is no defect upon the face of the verdict or judgment, therefore, the verdict is not erroneous.

E. T. Miller and A. P. Stewart for respondent.

(1) The court did not err in granting defendant a new trial on the ground that it had erred in overruling the demurrer to the evidence at the close of plaintiff's case. Plaintiff failed to produce any substantial evidence tending to show either actual or constructive notice upon the part of defendant that a rod or some other appurtenant part of the train was projecting therefrom, and, if such was the fact, that it had been in that condition a sufficient length of time before the accident to have enabled defendant, in the exercise of ordinary care, to have repaired it prior to plaintiff's injury. The demurrer to the evidence should have been sustained, and the action of the trial court in setting aside the verdict and granting defendant a new trial was proper. Thompson v. Railway, Mo. , 183 S.W. 631. (2) Notwithstanding the trial court specified only one ground in the order awarding a new trial, defendant is not precluded from showing that a new trial should have been awarded on other grounds assigned in the motion therefor. Emmons v. Quade, 176 Mo. 22, 29; Chandler v. Gloyd, 217 Mo. 394; Millar v. Car Co., 130 Mo. 517. (3) Plaintiff's evidence having failed to make a case for the jury, and the deficiencies therein not being cured by the evidence for defendant, the peremptory instruction requested by defendant at the close of the whole case should have been given, and the court would have been justified in awarding defendant a new trial on this ground. Thompson v. Railway, supra. (4) Instruction No. 1 given for plaintiff is erroneous in that it is not supported by the evidence, and in addition is based on evidence erroneously admitted over defendant's objection. Evans v. Railway, 106 Mo. 594; Paddock v. Somes, 102 Mo. 226; Houser v. Andersch, 61 Mo.App. 15. The trial court would have been justified in awarding defendant a new trial for error in the giving of this instruction. (5) The trial court would have been justified in awarding defendant a new trial because of error in refusing to give defendant's requested instructions Nos. 3, 4, 5, 6 and 7. These were withdrawal instructions, intended to eliminate from the consideration of the jury assignments of negligence which were without support in the evidence, and should have been given. Chrismer v. Tel. Co., 194 Mo. 189; DeWolf v. Dry Goods Co., Mo.App. , 240 S.W. 1094.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.--

Plaintiff recovered judgment against the defendant for $ 1500 in an action for damages for personal injuries alleged to have been sustained by plaintiff being struck by something projecting from one of defendant's passenger trains as it passed plaintiff while standing between the main line tracks of the defendant, engaged in surveying. The trial court sustained defendant's motion for a new trial on the ground that it had erred in overruling the demurrer to the evidence interposed by defendant at the close of plaintiff's case. In due course the plaintiff appeals from the order granting a new trial.

Plaintiff's petition contains five assignments of negligence. The case as submitted to the jury was predicated only on two thereof, which are as follows:

"First. That defendant knew of, or by the exercise of ordinary care could have known, that plaintiff was standing at or near said eastbound track and negligently caused, suffered and permitted a rod or other object to project out from said train while passing plaintiff, which defendant knew, or by the exercise of ordinary care could have known, was liable to strike and injure plaintiff."

"Fifth. That defendant failed to stop said train when signaled to stop by its employees before passing plaintiff when the employees in charge of said train were signaled to stop, and could have, by the exercise of ordinary care and with the means and appliances at hand and with safety to defendant's employees and the passengers of the train, stopped the train or checked the speed and prevented injuring plaintiff."

The defendant's answer was a general denial and a plea of contributory negligence.

The reply was conventional.

Since plaintiff, appellant here, urges as his principal assignment of error that the action of the trial court in granting defendant a new trial on the ground that plaintiff had failed to make out a case for the jury, and we have come to the conclusion, after full consideration of the record in the case, that the point is well taken, we set out the testimony which we hold sustains our view.

The evidence shows that plaintiff had been working for the city of St. Louis as a civil engineer for about two years prior to his injury; that the defendant maintained a passenger station at Lindenwood near the city limits of St Louis and owned and operated a double line of railroad tracks at said Lindenwood Station, which tracks run in a northeastwardly and southwestwardly direction; that there was a ten or twelve foot space between the inside rails of the inbound and outbound tracks; that there was a foot path in this space between the tracks at the place where plainti...