Murrell v. Missouri Pacific Ry. Co.

• Decision Date: 15 February 1904
• Parties: LILLIE P. MURRELL, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

79 S.W. 505

105 Mo.App. 88

LILLIE P. MURRELL, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 15, 1904

Appeal from Cole Circuit Court.--Hon. J. E. Hazell, Judge.

Judgment affirmed.

Wm. S Shirk for appellant.

(1) The plaintiff was a trespasser on defendant's tracks. Under such circumstances, she was not even a licensee, but a naked trespasser. R. S. 1899, sec. 1105; Hyde v. Railway, 117 Mo. 202; O'Donnell v. Railway, 7 Mo.App 190; Ostertag v. Railroad, 64 Mo. 421; Railway v. Talbot, 85 Ga. 447; Railway v. Meyers, 136 Ind. 242; Gweeney v. Railroad, 128 Mass. 5; Glass v. Railway, 94 Ala. 581; Railway v Godfrey, 71 Ill. 500; Blanchard v. Railway, 126 Ill. 799; Eggman v. Railroad, 47 Ill.App. 507; Railway v. State, 62 Md. 479. (2) The plaintiff was a trespasser even under the following Missouri cases, usually cited to a contrary doctrine: Williams v. Railway, 96 Mo. 275; LeMay v. Railway, 105 Mo. 361; Lynch v. Railway, 111 Mo. 601; Easley v. Railway, 113 Mo. 236; Fielden v. Railway, 107 Mo. 645; Morgan v. Railway, 159 Mo. 262. (3) Being a trespasser, the engineer and fireman was not bound to be upon the lookout for her. Elliott on Railways, sec. 1252, p. 1957, and the following: Williams v. Railroad, 96 Mo. 275; Riley v. Railroad, 68 Mo.App. 652; Rine v. Railway, 100 Mo. 228; Barker v. Railway, 98 Mo. 50; Yarnall v. Railway, 75 Mo. 579; Donohue v. Railway, 83 Mo. 554; Shaw v. Railway, 104 Mo. 656; Coatney v. Railway, 151 Mo. 49; Hall v. Powers, 12 Metc. 482. (4) The engineer was upon the lookout, and saw her before she put herself in a position of peril. The train was running west, which threw the engineer on the north side of the engine. Plaintiff was south of the track, and the engineer as he run toward her lost sight of her. As she stepped from south of the main track, onto the main track, the fireman saw her, and shouted to the engineer who immediately did all in his power to prevent striking her. This was all that the law requires. Feeback v. Railway, 167 Mo. 266; Dunkman v. Railway, 95 Mo. 232; Guenther v. Railway, 108 Mo. 18; Halliman v. Railway, 71 Mo. 14; Malloy v. Railway, 84 Mo. 270; Langan v. Railway, 72 Mo. 394; Coatney v. Railway, 151 Mo. 49. (5) And the engineer was not bound to slow up his engine or stop it, until he saw her in a position of danger. He had a right to presume that plaintiff being in full sight of his train, would not step upon the track in front of it. Guyer v. Railway, 73 S.W. 584; Reardon v. Railway, 114 Mo. 384; Bell v. Railway, 72 Mo. 50; Maloney v. Railway, 84 Mo. 270; Bunyan v. Railway, 127 Mo. 12. A more pronounced case of contributory negligence it would be hard to imagine. Tanner v. Railroad, 161 Mo. 497; Guyer v. Railway, 73 S.W. 584; Sharp v. Railway, 161 Mo. 214; Vogg v. Railway, 138 Mo. 172; Hook v. Railway, 162 Mo. 569; Peterson v. Railway, 156 Mo. 552; Merrielies v. Railway, 163 Mo. 470; Elliott on Railways, sec. 1166, and note p. 1776; Beach on Con. Neg., sec. 37. And the fact if true that the defendant's fireman and engineer did not ring the bell or sound the whistle was no excuse for this negligence on plaintiff's part. Kries v. Railroad, 148 Mo. 321; Dlauhi v. Railroad, 105 Mo. 645; Corcoran v. Railway, 105 Mo. 399; Hayden v. Railway, 124 Mo. 566; Kelsay v. Railway, 129 Mo. 362; Baker v. Railway, 122 Mo. 533; Vreetland v. Railway, 92 Iowa 292. (6) The court below erred in refusing to sustain defendant's demurrer to the plaintiff's evidence at the close of plaintiff's case. (7) And as defendant's evidence did not aid plaintiff's case, the demurrer to all the evidence should have been given. Weber v. Railway, 100 Mo. 194; Eberly v. Railroad, 96 Mo. 361; Glover v. Bolt Co., 153 Mo. 342. (8) There was no acquiescence by the company to the public or persons walking on its tracks. Up to within a month or two at furthest, the railway company kept warning notices posted for many years. Under these notices warning all persons not to walk on the tracks, plaintiff was not even a licensee. Such notices, whether the plaintiff ever saw them or not, prove beyond cavil, that defendant did not permit or sanction such use of its tracks. Hyde v. Railway, 110 Mo. 272; Young v. Railway, 156 Mass. 560; Ward v. Railway, 25 Or. 433; Wright v. Railway, 142 Mass. 296.

Pope & Belch for respondent.

We submit the following authorities in support of our position: Hutchinson v. Railway, 88 Mo.App. 376; Morgan v. Railway, 159 Mo. 262; Schmidt v. Railway, 160 Mo. 43; Spencer v. Railway, 90 Mo.App. 91; McAndrew v. Railway, 88 Mo.App. 97; Dieter v. Zbaren, 81 Mo.App. 612; Edwards v. Railway, 94 Mo.App. 36; O'Keefe v. Railway, 81 Mo.App. 386; Independence v. Railway, 86 Mo.App. 585.

OPINION

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 three thousand dollars.

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 railways and that this was observed and known by defendant for more than twenty 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 engineer 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 can not 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 that for a great many years it had been altogether ignored. The engineer in charge of the train had known it for twenty-four years. It follows that plaintiff was not a trespasser when walking along the track or on the right of way. Morgan v. Railway, 159 Mo. 262. It was the duty of defendant's servants in charge of the engine to keep a lookout for persons on the track, and its liability is not limited to want of care after discovery of the danger. Williams v. Railway, 96 Mo. 275. It was their duty to obey the ordinance as to rate of speed, and in failing to do so they were guilty of negligence. Hutchinson v. Railway, 161 Mo. 246; Karle v. Railway, 55 Mo. 476; Edwards v. Railway, 94 Mo.App. 36.

We thus have both parties to the controversy guilty of negligence. Ordinarily, that bars the plaintiff's right of recovery. But when the railway company's servants see the injured party's peril, or, when by ordinary care they might have seen it, in time to avert a collision, and fail to do so, the company is liable. Morgan v. Railway, supra. And although railway servants use every effort to avoid injury after discovering the peril of the person injured and find it impossible to...