Lynch v. St. Joseph & I. Ry. Co.

• Decision Date: 02 July 1892
• Court: Missouri Supreme Court
• Parties: LYNCH v. ST. JOSEPH & I. RY. Co.<SMALL><SUP>1</SUP></SMALL>

19 S.W. 1114

111 Mo. 601

LYNCH v. ST. JOSEPH & I. RY. Co.¹

Supreme Court of Missouri, Division No. 2.

July 2, 1892.

RAILROAD COMPANIES — INJURY TO PERSONS ON TRACK — INSTRUCTIONS — NEGLIGENCE.

1. In an action against a railroad company for negligently causing death, a petition which alleges that at the time of the accident (which occurred within the limits of a certain city) the ordinances of that city prohibited the running of trains at a greater speed than five miles an hour; that defendant negligently ran its train of cars over the deceased, thereby killing him; and that at that time said train was running at a greater rate of speed than five miles per hour, — is sufficient, after verdict, to sustain a judgment for the plaintiff, where the only objection raised to the petition in the trial court is an objection to the introduction of any evidence because the petition fails to state a cause of action.

2. Where the track and right of way of a railroad in a city are habitually used by the public for a way to the city streets, and there are gates in the railroad fence to enable pedestrians to go upon the track, a person walking on such track on his way to a street is not a trespasser.

3. Where the court, in its instructions, erroneously speaks of plaintiff's intestate as a trespasser, the fact that the rules laid down in the instructions as governing the defendant's liability are not applicable to the case of trespassers is no ground for reversing a judgment against the defendant, since it cannot take advantage of the error in its own favor.

4. In an action against a railroad company for causing the death of a person walking on its track it is proper to instruct the jury to the effect that they may find for plaintiff not only if the defendant's servants saw the deceased in time to have avoided the injury by the exercise of ordinary care, but also if they, by the exercise of ordinary care, might have seen him in time to have avoided the injury, and failed to exercise such care. Guenther v. Railway Co., (Mo. Sup.) 18 S. W. Rep. 846, followed.

Appeal from circuit court, Buchanan county; OLIVER M. SPENCER, Judge.

Action by Sarah M. Lynch against the St. Joseph & Iowa Railway Company for damages for killing her husband Plaintiff obtained judgment. Defendant appeals. Affirmed.

Brown & Craig, for appellant. D. D. Burnes and J. W. Boyd, for respondent.

THOMAS, J.

Plaintiff recovered judgment against defendant in the circuit court of Buchanan county in February. 1889, for $5,000 for killing her husband, and the defendant appeals.

1. The first point urged by defendant for reversal of the judgment is that plaintiff's petition fails to state facts sufficient to constitute a cause of action. No objection to the petition was made in the court below prior to the verdict, except to the introduction of any evidence because the petition wholly failed to state a cause of action. The petition alleges that at the time of her husband's death (which occurred inside the limits of the city of St. Joseph) the ordinances of that city prohibited the running of a locomotive engine, passenger car, or freight car "upon or along any railroad track within said city at a greater speed than the rate of five miles per hour," and required that the bell of each locomotive or engine should be rung continually while running within said city; that her husband went upon defendant's track in said city at a point where it was used, and where defendant had permitted it to be used, for public travel; that while he was so on said track defendant negligently ran its engine and train of cars onto and over him, thereby killing him; that at the time of running over him the train of cars was propelled within said city "at a greater speed than at the rate of five miles per hour;" that neither the bell nor whistle of the engine was rung or sounded as the train approached him; and that "by reason of the facts aforesaid she is and was damaged to the extent of $5,000." The specific objection now made to this petition is that it fails to state "that the accident resulted from a violation of the city ordinance. Although the ordinance, the speed of the train, and failure to ring the bell are set out with particularity, no attempt is made to connect those matters with the striking of plaintiff's husband." This point would probably have been well taken if it had been raised by demurrer, but we do not think it good on objection to the introduction of any evidence. Though inartificially drawn, the petition does not wholly fail to state a cause of action. An objection to a petition which states a cause of action imperfectly can be made only by demurrer or motion to make more definite and specific. McDermott v. Claas, 104 Mo. 14, 15 S. W. Rep. 995. But the petition does state one ground of relief clearly and specifically, and that is that defendant negligently ran its train of cars over plaintiff's husband, and thereby killed him; and the right of plaintiff to recover on the ground of defendant's failure to comply with the city ordinances could have been contested only during the subsequent progress of the trial, and the objection that plaintiff did not count on such failure no where appears in this record. But we think, taking the petition as a whole, it does count on the failure of defendant to comply with the ordinances, though the averments in that particular are not as direct, concise, and clear as they should have been, but they are not so defective, in substance, as would justify the court in holding the petition bad after verdict.

2. The next contention arises upon the instructions and the evidence. The defendant's railroad was constructed and opened for business about the 13th day of October, 1887, — the October next preceding the accident upon which this suit is...