Mary Woods v. Wabash Railroad Company

• Decision Date: 25 April 1905
• Citation: 86 S.W. 1082,188 Mo. 229
• Parties: MARY WOODS v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

86 S.W. 1082

188 Mo. 229

MARY WOODS v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri

April 25, 1905

Appeal from Pike Circuit Court. -- Hon. D. H. Eby, Judge.

Affirmed.

George S. Grover for appellant.

(1) The demurrer to the evidence should have been sustained. Yancey v. Railroad, 93 Mo. 433; Sinclair v Railroad, 133 Mo. 233; Morgan v. Railroad, 159 Mo. 262; Holwerson v. Railroad, 157 Mo. 216; Sharp v. Railroad, 161 Mo. 214; Tanner v Railroad, 161 Mo. 497; Hook v. Railroad, 162 Mo. 569; Van Bach v. Railroad, 71 S.W. 358. (2) At the close of the entire testimony the court below should have directed a verdict in favor of the defendant. Authorities supra. (3) The court gave erroneous instructions at the plaintiff's request. Railroad v. Railroad, 118 Mo. 625; Robertson v. Railroad, 152 Mo. 382. (4) The court refused proper instructions asked by defendant. R.S 1899, sec. 1105; Payne v. Railroad, 136 Mo. 562; Sinclair v. Railroad, 133 Mo. 233; Turner v. Railroad, 78 Mo. 578; Alcorn v. Railroad, 108 Mo. 90.

Norton, Avery & Young and Barnett & Hostetter for respondent.

(1) Instruction one given for plaintiff properly declared the law under the pleadings and the evidence. Hanlon v. Railroad, 104 Mo. 381; Smith v. Railroad, 53 Mo.App. 36; Dahlstrom v. Railroad, 108 Mo. 525; Reardon v. Railroad, 114 Mo. 384; Sullivan v. Railroad, 117 Mo. 214; Sinclair v. Railroad, 133 Mo. 233; Chamberlin v. Railroad, 133 Mo. 587; Williams v. Railroad, 96 Mo. 275; Lynch v. Railroad, 111 Mo. 607; Donahue v. Railroad, 91 Mo. 357; Schofield v. Railroad, 75 Mo. 434; Frick v. Railroad, 75 Mo. 595; Kelly v. Railroad, 75 Mo. 138; Mayher v. Railroad, 64 Mo. 267; Meyer v. Railroad, 59 Mo. 223; Dunkman v. Railroad, 95 Mo. 232; Powell v. Railroad, 59 Mo.App. 626; Kries v. Railroad, 131 Mo. 533; Guenther v. Railroad, 108 Mo. 18; Kelney v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262. (2) Instruction 2 given at the instance of plaintiff properly declared the law. Weller v. Railroad, 164 Mo. 180; Sullivan v. Railroad, 117 Mo. 214; Reardon v. Railroad, 114 Mo. 384. (3) The court properly refused to give defendant instructions in the nature of a demurrer to the evidence. Keller v. Railroad, 164 Mo. 180; Reardon v. Railroad, 114 Mo. 384. (4) The court did not err in the refusal of any or all of defendant's instructions which were refused: (a) They were too numerous and were unnecessary and liable to confuse the jury. State v. Frazier, 137 Mo. 317. (b) They embraced a repetition of principles already laid down. Crews v. Railroad, 19 Mo.App. 302. (c) The refusal was warranted by the very fact of their large number. Buck v. Railroad, 108 Mo. 179; Blanton v. Dold, 108 Mo. 64; Hickman v. Link, 116 Mo. 123; State v. Tomasitz, 144 Mo. 86.

VALLIANT, J. Brace, C. J., Gantt and Lamm, JJ., concur; Burgess and Fox, JJ., concur. Marshall, J., not sitting.

OPINION

In Banc.

VALLIANT J.

The plaintiff, a girl between fifteen and sixteen years old, in company with her twin sister, was on her way to school walking along the defendant's railroad track, when her foot got fastened in the slats or bars of a cattle guard, and before she could extricate it a train of defendant, consisting of a locomotive, tender and caboose, came along and ran over her, inflicting very distressing injuries.

The theory of the plaintiff's case is that, notwithstanding the fact that it was the plaintiff's own act that put her in the position of danger, yet the servants of the defendant in charge of the train saw her in that position in time to have avoided the injury, if they had exercised ordinary care, but failed to do so.

The vital question in the case is, was there substantial evidence to sustain that theory?

The undisputed facts are as follows:

The father of the plaintiff lived on a farm two and a half miles west of Wentzville; his dwelling house was about thirty-five yards south of defendant's railroad track; the fence in front of his house, though about eighteen feet south of the line of defendant's right of way, was adopted by defendant by joining its right of way fence to it; the gate from the front yard opened on the right of way.

The railroad ran east and west in front of the house. The schoolhouse, to which the children were going, was south of the railroad a half mile west of their father's house. There was a private road leading north from the Woods house across the railroad to the county road, which at that point was distant 356 feet from the railroad. The county road ran thence west, bearing south 939 feet, thence southwest 290 feet to the north line of the railroad right of way, thence along the right of way 1460 feet to another county road running north and south and crossing the railroad a half mile west of the Woods house. The schoolhouse fronted this county road. Where this road crosses the railroad there is a cattle guard on each side. The children could have reached the school house by going around by way of the county roads, but there was no road open to them from their father's house to the schoolhouse on the south side of the railroad. Their usual course to school and that of other children was, as they went on the morning in question, along the railroad track west to the county road, thence south about 250 feet to the schoolhouse.

The track from the Woods house to the cattle guard is slightly up grade, and, going west, it curves slightly toward the north. About half way between the private road in front of the Woods house and the cattle guard is a whistling post. This is 1320 feet from the cattle guard. One standing at the whistling post can see an object on the cattle guard. These girls were clad in red frocks and white sun bonnets. The engineer, defendant's witness, testified that when the whistling post came in view he sounded the whistle, and as he past the whistling post he saw the girls on the track, he was at his post on the right side of the cab looking up the track and kept his eyes on the girls until the accident occurred. The point of essential difference, however, between his testimony and that of the plaintiff's is, that he said that when he came in sight of the girls they had not yet reached the cattle guard but were walking or running on the track towards it, whereas the plaintiff's testimony, as is contended, tends to show that her foot had already been caught in the cattle guard, she had already fallen and was in that condition when the engine came in sight and when the engineer first saw her. The plaintiff's testimony on that point is as follows:

The father of plaintiff testified that he was in the county road north of his house talking with his son and the witness Nat Walker when he heard the whistle of the train in the direction of Wentzville; he then thought of his children, looked up the road, and saw them, and holloed to them but they did not seem to hear, they were then about half way between the private crossing and the whistling post. He talked for a while with those young men, then walked to his granary some 200 yards distant, when he got to the gate he again looked towards his children and they were then at the cattle guard walking west, the train was then at the forty-six-mile post, about a mile east of his house, he could see the steam from the locomotive; the forty-seven-mile post was opposite the gate at his wood yard where he was standing. Seeing the children were as he thought out of danger he went on to the granary, 130 feet from the gate; in the granary he hung up some sacks, then came out, walked to his house about thirty yards and as he was going the train passed his house.

Nat Walker testified to the following effect:

On the morning of the accident he was driving a wagon loaded with grain to Wentzville; he met Mr. Woods in the public road north of his house; he stopped and talked with him some time, did not know how long; saw the girls walking up the track some distance, could not say how far. After parting with Mr. Woods witness drove on down towards Wentzville, at a steady gait, a walk. "Walked my team down there half a mile and met the train there."

Charles Oney, a boy sixteen years old, was on his way to the same school, but coming towards the cattle guard from the opposite direction. He was walking east on the track and saw the girls coming west, saw Mary when she got her foot fastened and fell, and he ran to her assistance, but the train was on her before he got to her. He located the point from which he saw her fall by reference to a telephone pole, and stated that to be sure of the distance he went back afterwards and counted the rails, it was sixty rails, and after running towards her he was the distance of the length of thirty-two rails when the engine struck her. He testified that when she fell there was no train in sight, but that he could hear its rumbling, which he took to be east of the whistling post.

On cross-examination he was shown a written statement which had been prepared by an agent of the railroad company soon after the accident and was asked if he had signed it and if it was true, and he answered yes. In this paper it was stated that when he first saw the girls they were walking along the track and that as soon as the engineer whistled for the crossing they began to run towards the cattle guard and one passed over but the other got her foot fastened and she fell. "I know on account of the place I was in, this curve and cut, I could only see the engine when it was close to the crossing. The little girl was only fastened in the guard a very short time; couldn't say how many seconds before the engine ran over her."

Both the girls testified that they did not run, but were walking along as they usually did when Mary got her foot fastened and at that time there was no...