Murrell v. Missouri Pac. Ry. Co.

• Decision Date: 15 February 1904
• Citation: 79 S.W. 505,105 Mo. App. 88
• Court: Missouri Court of Appeals
• Parties: MURRELL v. MISSOURI PAC. RY. CO.<SMALL><SUP>*</SUP></SMALL>

79 S.W. 505

105 Mo. App. 88

MURRELL v. MISSOURI PAC. RY. CO.^*

Kansas City Court of Appeals. Missouri.

February 15, 1904.

RAILROADS — PERSONAL INJURIES — NEGLIGENCE—VIOLATION OF CITY ORDINANCE— PERSON WALKING ON TRACK—TRESPASS— EVIDENCE — SUFFICIENCY — INSTRUCTIONS— —HARMLESS ERROR.

1. In an action against a railroad for injuries to plaintiff while walking on the company's track, the evidence showed that for many years people had used the right of way and the tracks where plaintiff was walking when injured as a passway; that though a sign was up, warning people off, it was never obeyed, and defendant knew that for a great many years it had been altogether ignored. The engineer had known it for 24 years. Held, that plaintiff was not a trespasser.

2. Where a city ordinance limits the speed of trains within the city to five miles an hour running a train in the city at a greater rate of speed is negligence.

3. The liability of a railroad for negligence in injuring a person on its tracks is not limited to want of care after discovery of the danger, where the defendant's servants in charge of the engine violated their duty to keep a lookout for persons on the track.

4. In an action against a railroad for injuries to a person walking on defendant's tracks in a city whose ordinance forbade the running of trains at a greater speed than five miles an hour, the defendant cannot excuse itself from liability, notwithstanding the negligence of the plaintiff in being on the track, on the ground of impossibility to stop in time to avoid the injury, where its negligence in violating the ordinance by running at a greater speed than five miles an hour made it impossible to stop.

5. In an action for injuries to plaintiff while walking on defendant's track in a city whose ordinance limited the speed of trains to five miles an hour, a charge that plaintiff was entitled to recover if the injury was directly occasioned by defendant's engine being run at a greater speed than five miles an hour, though plaintiff was a trespasser, unless she saw or heard the train coming in time to avert the injury, in so far as it erroneously permitted plaintiff to be regarded as a trespasser, was harmless as to defendant.

6. In an action against a railroad for injuries to plaintiff while walking on defendant's tracks in a city whose ordinance limited the speed of trains to five miles an hour, a charge that though the jury might find that defendant's engine was running at a greater speed than five miles an hour, and that such rate of speed was in violation of the city ordinance, yet this fact does not of itself entitle plaintiff to a verdict, but the jury must further find that such rate of speed was the direct and efficient cause of plaintiff's being struck, and that she would not have been struck if the engine had been running at the rate of five miles an hour, cures the fault of another instruction that plaintiff was entitled to recover if the striking was directly occasioned by defendant's engine being run at a greater speed than five miles an hour, though plaintiff was a trespasser, unless she saw or heard the train coming in time to avert injury, which omitted to qualify the statement by adding a clause as to the engineer being able to stop if the rate of speed had been proper.

Appeal from Circuit Court, Pettis County; James E. Hazell, Judge.

Action by Lillie P. Murrell against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. L. Clardy and Wm. S. Shirk, for appellant. Pope & Belch, for respondent.

ELLISON, J.

Plaintiff was struck and severely injured by one of defendant's passenger engines within the corporate limits of Jefferson City. She brought this action to recover damages on account thereof, and had judgment in the trial court for $3,000.

There were two counts in the petition. The verdict for plaintiff was on the second count. That count charged that by the ordinances of said city trains were not permitted to run to exceed five miles per hour, and were required to ring the bell of the engine while passing through the corporation. That it was the custom and constant habit of people residing in the western part of the city to pass both ways along the tracks of the railway, and that this was observed and known by defendant for more than 20 years. The trial court refused all instructions offered by either party, and gave a series of its own motion covering the theories advanced by each. The first count may be considered as eliminated from the case, and we will consider the case as made under the second count.

Plaintiff lived with her father in the western part of the city, and on the day in question had been to the station to meet a friend expected from St. Louis. She was disappointed, and started home alone, going west along the line of defendant's road. She walked perhaps a part of the time on the track and part by the side. She had proceeded on her way considerably more than a quarter of a mile (about 1,800 feet) when she was struck by defendant's engine, drawing a passenger train from the east. She admitted in her testimony that she was on the track, and that she neither looked nor listened before going onto it.

The engineer and fireman were witnesses for defendant. The former says he had seen a woman walking by the side of the track, but as he got near, she being on the opposite side from him, he lost sight of her. But in a moment a cry of alarm from the fireman caused him to quickly set his emergency brake, and then he saw plaintiff's hat come back across the steam chest, followed almost immediately by her body, when she fell off to the side onto the ground. The fireman said that he had been firing, and as he raised up he saw plaintiff in the act of stepping onto the track. He immediately caught the bell rope and called to the engineer. Not allowing that plaintiff was carried a distance before being thrown off the side of the engine, the train was stopped in something over 300 feet from where she was struck. How far she may have been carried before being thrown off does not appear with any degree of certainty.

There was an abundance of evidence that the train was running at a far greater rate of speed than was prescribed by the ordinance. The facts developed leave ample room for the reasonable inference of two things, either of which would have avoided the accident: First, that, if the train had been running at the lawful speed, it could have been stopped by the enginer before it struck plaintiff; or, second, that plaintiff would have cleared the track. Five miles an hour is but little more than a fast walk, and it can readily be seen how quickly the train would have been stopped by the emergency brake, after the engineer undertook to stop it, if it had been going at that safe speed which was prescribed by the ordinance. Conceding plaintiff to have been a trespasser, defendant would not have been under a duty to look out for her. But that concession cannot be made with propriety, as we shall show.

The evidence in the cause, including that of the defendant's engineer and fireman, long in its service, showed that for many years people had used the right of way and the tracks as a passway. It practically shows that this was with the consent of the company, for, while a sign was shown to have been up warning people off, it was never obeyed, and defendant knew...