Pope v. Wabash R. Co.

• Decision Date: 27 February 1912
• Parties: POPE v. WABASH R. CO.
• Court: Missouri Supreme Court

146 S.W. 790

POPE v. WABASH R. CO.

Supreme Court of Missouri, Division No. 2.

February 27, 1912.

Motion for Rehearing Denied April 9, 1912.

1. DEATH (§ 9)—ACTIONS FOR DEATH—STATUTES—VALIDITY.

Rev. St. 1909, § 5425, authorizing an action for negligent death in enumerated cases, is valid.

2. RAILROADS (§ 389)—INJURIES TO PERSONS ON TRACK—NEGLIGENCE—EVIDENCE.

Where a person on a railroad track knew of the approach of a train in time to escape from danger, though no signal of the train's approach was given, a failure to give any signal was not actionable negligence.

3. RAILROADS (§ 389)—INJURIES TO PEDESTRIANS—EXCESSIVE SPEED OF TRAIN—NEGLIGENCE.

Where a person on a railroad track was familiar with the running of trains and their speed, and knew that the trainmen had not observed the speed limit ordinance, and he was not influenced to remain on the track by the belief that an approaching train was running within the speed fixed by the ordinance, the failure to observe the ordinance was not the proximate cause of an injury to him.

4. RAILROADS (§ 390)—INJURIES TO PERSONS ON TRACK — NEGLIGENCE — HUMANITARIAN DOCTRINE.

The rule as to trainmen aware of the peril of a person on the track in time to avoid injury to him by the exercise of ordinary care does not apply where the person on the track may safely leave it, where he knows of the approaching danger, for in that case the trainmen may presume that he will step off the track in time to avoid injury; and, in the absence of any evidence of negligence of the trainmen after it becomes apparent that the person does not intend to leave the track, the company is not liable for an injury to him.

5. RAILROADS (§ 377)—INJURIES TO PERSONS ON TRACK—LIABILITY.

Though trainmen may not willfully or recklessly injure persons on the track, but must use care to avoid injury, they may rely on the presumption that an adult person on the track will get out of the way of the train.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Amanda J. Pope against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. L. Minnis and Higbee & Mills, for appellant. Campbell & Ellison and C. E. Murrell, for respondent.

KENNISH, J.

On the 13th day of September, 1907, in the city of Kirksville, Adair county, Joseph Pope, deceased, was struck and killed by appellant's train. Respondent, his widow, brought this action for damages under the provisions of section 5425, Revised Statutes 1909. Upon a trial, a verdict was returned in her favor, awarding damages in the sum of $2,000. The defendant appealed to this court. In its answer, the defendant assailed the constitutionality of said statute; hence the appellate jurisdiction of this court.

The acts of negligence assigned in the petition are that deceased, Joseph Pope, being upon the defendant's railroad track, where the same is much traveled by pedestrians, by the negligence of defendant's agents in charge of and operating defendant's train upon its said track, was knocked down and received injuries from which he died; that by the exercise of ordinary care on their part the said agents so in charge of said train might have seen said Pope and become aware of his peril in time to have stopped the train before it reached him, and thus have avoided striking and killing him; that the defendant's said agents negligently failed to ring the bell or sound the whistle as the train approached said Pope; and that the said agents negligently operated said train at a high and dangerous rate of speed in said city, in violation of a city ordinance, thereby causing the injury complained of.

The answer contained four defenses: A general denial; a defense of contributory negligence; that the ordinance limiting the speed of trains was unreasonable and void: and that section 5425, Revised Statutes 1909, under which the action was brought, was unconstitutional.

At the close of all the testimony, the defendant asked in instruction in the nature of a demurrer to the evidence, which the court refused. Defendant saved its exceptions and, among other errors assigned, complains of the action of the court in refusing said instruction. This assignment necessitates a review of all the evidence tending to support plaintiff's cause of action, whether introduced by plaintiff or by defendant.

There was very little conflict as to the material and determinative facts in evidence. It was shown by the undisputed testimony that appellant's railway track runs north and south at the place of the alleged injury. Elizabeth street runs east and west on the north side of the city of Kirksville; and it was at the intersection of said street and railway track that the deceased was killed. The track is straight and the view unobstructed for a distance of more than half a mile to the north, so that a person walking thereon where the accident occurred could plainly see an approaching train for that distance, and could as plainly be seen for the same distance by the engineer of a south-bound train.

Plaintiff's first witness was M. B. Cowan, the conductor on the train that killed deceased. He testified that the deceased was struck by a south-bound passenger train at about 8 o'clock in the morning; that the crossing signal was given about 1,500 feet north of Elizabeth street crossing, and that the emergency brake was put on and the alarm signal given about the same time; that along the track, where a path made by pedestrians led from the pasture to the place of the accident, there was no obstruction to hinder a person from stepping off on either side to a place of safety from a passing train; that at the rate of speed the train was running that morning it could not have been stopped...