Murphy v. Wabash Railroad Company

• Decision Date: 13 May 1910
• Parties: S. A. D. MURPHY, Administrator Estate of LUKE FLETCHER, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

128 S.W. 481

228 Mo. 56

S. A. D. MURPHY, Administrator Estate of LUKE FLETCHER, v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri

May 13, 1910

Appeal from Knox Circuit Court. -- Hon. Chas. D. Stewart, Judge.

Affirmed.

Jas. L Minnis and Jones, Jones, Hocker & Davis for appellant.

(1) This case does not fall within what is known as the humanitarian doctrine of this court. Ayres v Railroad, 190 Mo. 228; Frye v. Railroad, 200 Mo. 377. The duty of the engineer to keep a lookout under the doctrine as here defined arises from a supposed invitation and license to walk upon the track, acquired "by the tacit consent and long acquiescence of" the company "in permitting open, known, free, continuous and extensive use of the track by footmen." The character and extent of the license, according to the language of the court, is limited by the previous known use made of the track with the acquiescence of the company The doctrine does not enjoin upon the engineer the duty to look out for a person on the track unless the use of the track the person is enjoying at the time is a known use previously acquiesced in by the company. Trigg v. Transit Co., 215 Mo. 521. The evidence shows that deceased was lying on the east end of a tie and over on the east rail, and therefore some distance east of the path between the rails used by the public as a footpath. The cases we have mentioned differ only in theory. The duty of the engineer to keep a lookout for a given person using the track, according to all the cases, arises from, is limited by and only commensurate with, his knowledge or presumed knowledge of an extensive and customary previous similar use of the track by the public at the same place and time. (2) The presence of deceased on the track, and his inability to discover the train and get out of its way after the engineer failed to observe him and stop the engine, were not excusable, because brought about by his own voluntary drunkenness, which in law was the proximate cause of his death. Under this rule the contributory negligence of deceased was obviously the proximate cause of his death. 1. Because deceased was not in peril. If we assume deceased was sober, the case is this: An adult person in possession of all his faculties went upon the private right of way of the railroad, sat down upon the end of a tie, and lay with his head over the rails, shortly before a train was due, and was thereby struck and killed. Assuming that deceased was sober and at himself, what purpose must be attributed to him in assuming that position on the railroad track? He had been a section hand and knew trains passed upon the track and that he could kill himself in that way, and that he would be killed unless he moved to a place of safety. We must presume if deceased "be dealt with as if sober," that he intended the natural and probable consequences of his act in taking that position. He remained there until he was struck and killed. Had he been sober at the time, a conclusive inference of law, as well as an inevitable inference from the facts, would compel us to say he took the position above described and remained there with deliberate intent to kill himself, and by that means actually committed self-murder. He must be deemed to have known the train was approaching because he must be deemed to have intended to be killed by the train. He was not, therefore, at any time in peril -- that is, unaware of the approach of the train. 2. Because, if "dealt with as sober," deceased, after he knew the engineer had failed to discover him and stop the train refused to get out of the way and thus rescue himself. Welty v. Railroad, 105 Ind. 55; Strand v. Railroad, 31 Am. and Eng. Railroad Cas. 54. 3. Because deceased's failure to rescue himself must at least be regarded as a concurrent cause of his death. Guyer v. Railroad, 174 Mo. 344; Van Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Holwerson v. Railroad, 157 Mo. 216; Sims v. Railroad, 116 Mo.App. 578; Cahill v. Railroad, 205 Mo. 393; Sissel v. Railroad, 214 Mo. 515. 4. After an exhaustive research, we have been unable to find a single text or decision wherein it has been laid down that a drunken person injured on a railroad track may recover damages on the ground that the engineer failed to be on the lookout. The text writers and cases all hold that in such a case the intoxication of the injured party will be regarded as the proximate cause of the injury. Beach on Contrib. Neg. (2 Ed.), sec. 391; 3 Elliott on Railroads (2 Ed.), sec. 1265, f; Thompson on Negligence, 450; Railroad v. Parthurst, 36 Ark. 371; Railroad v. Simpkins, 64 Tex. 615; Smith v. Railroad, 78 S.W. 556; Bozwodofskie v. Railroad, 20 S.W. 872; Railroad v. Harris, 53 S.W. 559; Beddenberger v. Transportation Co., 18 S.W. 970; Kean v. Railroad, 61 Md. 154; Railroad v. Hutchison, 47 Ill. 408; Maguire v. Railroad, 115 Mass. 239. (3) What is known as the humanitarian doctrine of this court is contrary to sound public policy, a statute of the State, the textwriters, and practically all the adjudged cases in other jurisdictions, and in the interest of public safety should be abandoned. 1. It is contrary to public safety. Our opposition to it begins and ends with the above statement. If the doctrine is conducive to public safety, then we have no objection to it. Under it the public not only have a right to use the track as a footpath, but it is the duty of the enginemen to look out for and rescue them. The doctrine then vouchsafes to our citizens generally: (a) the right to walk upon the track; (b) protection from the trains while so doing. The people acquire knowledge that they possess these rights from the decisions of the courts. While they do not read the opinions of the courts, they acquire a knowledge of them from the result of cases coming within their observation. The trial of a case against a railroad company for killing a person while walking on the track excites general attention. The people watch for the result of the trial. They learn from the result of the cases that they possess the above rights. The question then is whether the possession of these rights by the public, with the knowledge that they possess them, tends to encourage persons to walk upon railway tracks? If they have the right to walk upon the tracks, free from interference by trains, it would seem they could safely do so. If they have the right to walk upon the track in safety, what reason can be assigned why they should not and would not naturally enjoy that right? To say that the doctrine which vouchsafes to the public a legal right to walk upon railroad tracks without incurring peril from trains, will not encourage and induce persons to walk upon the track, is not only contrary to the principle underlying our government, but to reason and every man's experience. The great majority of men are restrained from doing things they have no right to do by the mere fact that they cannot lawfully do them. On the other hand they are tenacious of their rights, and if they have a right to walk upon the track, and it is the duty of the enginemen to look out for them, they have the right to assume that they may safely walk upon the track. 2. If the law permits persons to walk on the track, it should, in their interests, require them to look out for themselves. Hyde v. Railroad, 110 Mo. 279; Mulherrin v. Railroad, 81 Pa. St. 366. 3. The doctrine is violative of the rights of the traveling public. 4. The doctrine is violative of the rights of the railroad company. The court knows as a matter of common knowledge that railroad companies are powerless to prevent pedestrians from walking on their tracks, and the circumstance that such practice endangers the lives of the trainmen and passengers excludes an inference that the railroad companies invite them to walk upon the track or consent for them to do so. One's consent cannot be implied from the circumstance that he fails to prevent a practice which he is powerless to prevent. Railroad v. Womack, 84 Ala. 149; Beach on Contr. Neg., sec. 212; Carr v. Railroad, 195 Mo. 297. 5. The doctrine does not prevail generally in the courts of last resort in other States, except Texas, and there the contributory negligence of a drunken person on the track will defeat a recovery. Caldwell v. Railroad, 117 S.W. 488. It is held in the following States that the enginemen are under no duty to be on the lookout for persons walking on the track: Maine: Coup v. Railroad, 100 Me. 568; Connecticut: Nolan v. Railroad, 53 Conn. 461; New York: Holmes v. Railroad, 112 N.Y.S. 421; New Hampshire: Frost v. Railroad, 64 N.H. 220; Pennsylvania: Gilmartin v. Railroad, 186 Pa. St. 193; West Virginia: Huff v. Railroad, 48 W.Va. 45; Alabama: Railroad v. Linn, 103 Ala. 139; Iowa: Thomas v. Railroad, 114 Ia. 169; Minnesota: Heffel v. Railroad, 49 Minn. 263; Montana: Montague v. Railroad, 99 P. 690; Mississippi: Dooley v. Railroad, 69 Miss. 648; Illinois: Thompson v. Railroad, 226 Ill. 542; Indiana: Parker v. Railroad, 134 Ind. 673; Oklahoma: Falley v. Railroad, 16 Ok. 32; New Jersey: Devoe v. Railroad, 63 N. J. 276; Ohio: Railroad v. Workman, 66 O. St. 509; Michigan: Trudell v. Railroad, 126 Mich. 73; Massachusetts: Byrnes v. Railroad, 198 Mass. 444; Kentucky: Burton v. Railroad, 113 S.W. 442; Nebraska: Schultz v. Railroad, 119 N.W. 463; Oregon: Ward v. Railroad, 25 Ore. 433; Washington: Hamlin v. Railroad, 37 Wash. 448; Utah: Palmer v. Railroad, 34 Utah 466; Cannon v. Railroad, 157 Ind. 682; Railroad v. O'Cannon, 189 Ill. 564-5. These are leading cases. The Supreme Courts of the following States hold that while it is the duty of enginemen to be on the lookout, the failure of an adult pedestrian to keep a lookout and get out of the way of the train, will defeat a...