Missouri Pac. Ry. Co. v. Moseley, 187.

• Decision Date: 18 September 1893
• Docket Number: 187.
• Citation: 57 F. 921
• Parties: MISSOURI PAC. RY. CO. v. MOSELEY.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F. 921

MISSOURI PAC. RY. CO. v. MOSELEY.

No. 187.

United States Court of Appeals, Eighth Circuit.

September 18, 1893

F. W Lehmann, (H. S. Priest, on the brief,) for plaintiff in error.

Sterling P. Bond, for defendant in error.

Before BREWER, Circuit Justice, and SANBORN, Circuit Judge.

SANBORN Circuit Judge.

This is a writ of error to reverse a judgment against the Missouri Pacific Railway Company for a personal injury to the defendant.

On a bright afternoon in February, 1891, while Toliver Moseley the plaintiff below, was walking for his own convenience on one of five parallel railroad tracks in the terminal yards of the Missouri Pacific Railway Company, in the city of St Louis, Mo., at a point where he could see an object approaching him from the rear for at least a thousand feet, he was overtaken and injured by an engine that was backing down to the depot to take out a train. He sued the railroad company for this injury, and claimed that it was caused by its negligence in three particulars, viz.: First, that the engineer was running at a higher rate of speed than that permitted by an ordinance of the city of St. Louis; second, that the engineer and fireman did not exercise ordinary care in looking out for him, and preventing the accident; and, third, that they were guilty of negligence in failing to ring the bell of the engine, as required by an ordinance of the city of St. Louis. There was testimony to support each of these charges, but the defendant, at the close of the evidence, requested that the jury be instructed to return a verdict in its favor. The court refused this request, and charged the jury that the plaintiff could not recover on account of the speed of the engine, because there was no evidence that its excessive speed was the proximate cause of the injury; that he could not recover for the want of care of the engineer and fireman in failing to look out for or to discover him, and then to prevent the accident, because, if they were negligent in this respect, the plaintiff himself was equally guilty of the same species of neglect in failing to look out for and to discover the approaching engine; but that if the jury found that the bell was not ringing immediately before the accident, that, if it had been, the plaintiff would have heard it, and would have avoided the accident, and that he was at that moment taking such care to hear and to discover trains approaching him from the rear or front as a prudent person in his dangerous situation would have taken, they might return a verdict for the plaintiff. This action of the court is the supposed error complained of.

The rules of law by which this case must be determined are:

(1) In order to maintain an action for negligence, where the injury was not wantonly, maliciously, or intentionally inflicted, it must appear that the negligence of the defendant was the proximate cause of the injury, and it must not appear that the negligence of the plaintiff contributed to that injury.

(2) Where a diligent use of the senses by the plaintiff would have avoided a known or apprehended danger, a failure to use them is, under ordinary circumstances, contributory negligence, and should be so declared by the court.

(3) Where contributory negligence is established by the uncontroverted facts of the case, it is the duty of the trial court to instruct the jury that the plaintiff cannot recover. Railroad Co. v. Houston, 95 U.S. 697; Donaldson v. Railroad Co., 21 Minn. 293; Brown v. Railroad Co., 22 Minn. 165; Smith v. Railroad Co., 26 Minn. 419, 4 N.W. 782; Lenix v. Railway Co., 76 Mo. 86; Railway Co. v. Dick, (Ky.) 15 S.W. 665, 666; Schofield v. Railway Co., 114 U.S. 615, 5 S.Ct. 1125; Aerkfetz v. Humphreys, 145 U.S. 418, 420, 12 S.Ct. 835; Powell v. Railway Co., 76 Mo. 80; Yancey v. Railway Co., 93 Mo. 433, 438, 6 S.W. 272; Kelley v. Railroad Co., 75 Mo. 138; Bell v. Railroad Co., 72 Mo. 50; Turner v. Railroad Co., 74 Mo. 602; Dlauhi v. Railway Co., 105 Mo. 645, 654, 658, 16 S.W. 281.

The scene of this accident was the private terminal yards of the defendant in the city of St. Louis. Those yards extend from Seventeenth street on the east to Twenty-Ninth street on the west. The city blocks are about 300 feet long. The width of the yard from north to south does not appear, but at the place of the accident there were at least five parallel tracks running east and west. Twenty-Second street crossed these tracks at grade. Between this street and Twenty-Ninth street, running parallel to the latter street, were East Jefferson avenue, which crossed the tracts on a viaduct, and West Jefferson avenue, Twenty-Sixth street, Twenty-Seventh street, and Twenty-Eighth street, which abutted upon, but did not cross, the yards at all. On each side of the yards were graded streets running north and sought. Section 2611 of the Revised Statutes of Missouri provides that----

'If any person not connected with or employed upon the railroad shall walk upon the track or tracks thereof, except where the same shall be laid across or along a publicly traveled road or street, or at any crossing, * * * and shall receive harm on account thereof, such person shall be deemed to have committed a trespass in so walking upon said track in any action brought by him on account of such harm against the corporation owning such railroad, but not otherwise.'

Notwithstanding this statute, persons were accustomed to walk on the railroad tracks in these yards daily. There was no evidence, other than this fact, tending to show that the plaintiff or any other strangers were licensed or given permission to use the tracks of this yard for a footpath. An ordinance of the city of St. Louis required the defendant to constantly ring the bells on its engines while they were moving in these yards, and there was evidence that the bell on the engine that struck the plaintiff was not ringing. The plaintiff was an adult, and a stranger to the company. He went upon the yards at Seventeenth street, and walked west, over the network of tracks, to some point west of Twenty-Third street, and there visited a friend of his who was at work cleaning cars. He then started back, and walked between two of the five parallel tracks. When he was 150 feet west of Twenty-Third street he saw a freight train approaching him from the east, and stepped between the rails of the adjoining track. From this point to the point where he was struck he could have seen any object that was approaching him from the rear for a distance of at least a thousand feet, if he had looked in that direction.

He did not look behind him, but walked on along this track 300 feet, until he was overtaken and injured by the engine at a point some distance east of Twenty-Third street. The tender of the engine, which was backing down to take out a train, was piled high with coal, and neither the engineer nor the fireman saw the plaintiff until after he was injured. It conclusively appears from these facts that the plaintiff, without the defendant's knowledge, and without right, placed himself in an extremely dangerous place upon its tracks; that he knew his danger, and that the defendant did not; that he could still have avoided injury by the use of his eyes with any ordinary degree of care; and that he carelessly neglected to use them, and thereby suffered an injury. Can he be permitted to take advantage of his own carelessness, and to charge the damage he has suffered to the railroad company?

Here were the private yards in a great city of a large transportation system. They were in constant use in making up trains and distributing cars; engines were continually passing over their tracks. The business of the company demanded that these tracks should be used for this purpose and the statutes of Missouri had wisely declared any interference with this use by a stranger a trespass. Upon this use, untrammeled by unnecessary restrictions, the advancement of commerce, the safety of the traveling public, the rapidity of transportation, and the business success of the...