Powell v. St. Louis & San Francisco Railroad Company
| Decision Date | 21 June 1910 |
| Citation | 129 S.W. 963,229 Mo. 246 |
| Parties | NANNIE C. POWELL v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Reversed and remanded.
W. F Evans and Jones, Jones, Hocker & Davis for appellant.
(1) The plaintiff's deceased husband was guilty of such contributory negligence that as a matter of law the court should have instructed the jury to find for the defendant. The evidence shows that the deceased was walking along the railroad tracks without looking or listening for the approach of the train thereon, and failed to heed the warning repeatedly given him by the operatives of the train. Brocksmith v. Railroad, 205 Mo. 444; Statler v Railroad, 204 Mo. 636; Schmidt v. Railroad, 191 Mo. 228; Porter v. Railroad, 199 Mo. 97; Sinclair v. Railroad, 133 Mo. 241; Zumault v. Railroad, 170 Mo. 312; Hayden v. Railroad, 124 Mo. 566; Sanguinette v. Railroad, 196 Mo. 466; Peterson v. Railroad, 156 Mo. 560; Bell v. Railroad, 86 Mo. 612; Degel v. Railroad, 101 Mo.App. 59; Holmerson v. Railroad, 157 Mo. 225; Railroad v. Moseley, 57 F. 921; Tanner v. Railroad, 161 Mo. 510; Sharp v. Railroad, 161 Mo. 214; Skipton v. Railroad, 82 Mo.App. 143; Zimmerman v. Railroad, 71 Mo. 476; Powell v. Railroad, 76 Mo. 80; Yancy v. Railroad, 93 Mo. 433; Barker v. Railroad, 98 Mo. 50; Moxey v. Railroad, 113 Mo. 1; Vogg v. Railroad, 138 Mo. 112; Koegel v. Railroad, 181 Mo. 379; Taylor v. Railroad, 86 Mo. 457; Ham v. Canal Co., 155 Pa. St. 553. (2) The evidence justified the ejection; the negligence charged in ejecting the deceased was not the proximate cause of the death; and the demurrer should have been sustained for these reasons. (3) The duty of a person approaching or upon a railroad track is not to exercise ordinary care to look and listen for the approach of trains, but to actually look and listen therefor, and the defendant was entitled to a concrete instruction directed to the covering of that obligation by the deceased. Wands v. Railroad, 106 Mo.App. 99. (4) The court erred in excluding the testimony offered by the defendant with respect to the occurrences upon the train upon which the deceased rode from St. Louis to Pacific. The occurrences there were characteristic of what occurred on the inbound train, and the defendant was entitled to this testimony as an aid to the determination of the issue of fact as to the propriety or impropriety of the ejectment of the deceased, and as indicative of the attitude of the deceased at the time and under the circumstances in which he was ejected.
J. S. McIntyre and X. P. Wilfley for respondent.
(1) The conductor had no right to eject Powell from the train after he showed that he intended to become a passenger thereon, and after the conductor had accepted his ticket for a portion of the journey, and Powell had tendered him the money for the intervening distance. Holt v. Railroad, 174 Mo. 525; Gates v. Railroad, 125 Mo.App. 334; Peck v. Railroad, 129 Mo.App. 7. (2) Even if Powell had refused to pay his fare the conductor would not have been justified in putting him off at any other than a usual stopping place, or near a dwelling house. R. S. 1899, sec. 1074; 6 Ency. Pro. and Pr. p. 563; Railroad v. Johnson, 108 Ala. 62; Railroad v. Latimer, 128 Ill. 163; Sullivan v. Railroad, 81 Ky. 624; Boehn v. Railroad, 65 N.W. 506; Railroad v. Branch, 45 Ark. 524; Stephens v. Smith, 29 Vt. 160; Hang v. Railroad, 42 L. R. A. 664; Arnold v. Railroad, 115 Pa. St. 135; Holt v. Railroad, 174 Mo. 525. (3) The ejection of Powell, at the time and place and under the circumstances, was the proximate cause of the injury. If a person is placed in a situation of danger, by the defendant's misconduct, and is injured while making a reasonable endeavor, and in the exercise of ordinary care, to extricate himself, such misconduct of defendant is the proximate cause of the injury. Evans v. Railroad, 11 Mo.App. 463; Rawling v. Railroad, 97 Mo.App. 512; Winkler v. Railroad, 21 Mo.App. 99; Estes v. Railroad, 110 Mo.App. 725; Phillips v. Railroad, 211 Mo. 419; Miller v. Railroad, 90 Mo. 389. (4) Whether Powell was guilty of contributory negligence, or whether he exercised ordinary care in extricating himself, after he had been left in a place of danger by defendant, is a question for the jury and was properly submitted to the jury in the instruction given by the court. Tillburg v. Railroad, 217 Pa. St. 618; Ham v. Canal Co., 155 Pa. St. 548; Railroad v. Rosenzweig, 113 Pa. St. 519; Railroad v. Hedge, 44 Neb. 448; Railroad v. Terry, 62 Tex. 380; Brown v. Railroad, 54 Minn. 342; Railroad v. Doane, 37 Am. & Eng. Cases (Ind.) 87; Railroad v. Pitzer, 109 Ind. 179; Evans v. Railroad, 11 Mo.App. 463. (5) After deceased was ejected from the train, and left on the right of way of defendant, it was a question of whether he exercised ordinary care to get to a place of safety, and that was properly submitted to the jury in the instructions given. Railroad v. Cooper, 120 Ind. 469; Ham v. Canal Co., 155 Pa. St. 548; Tilburg v. Railroad, 217 Pa. St. 624; Jones v. Boyce, 1 Starkie 493; Malone v. Railroad, 152 Pa. St. 390; Railroad v. Hedge, 44 Neb. 448.
OPINION
In Banc.
-- This cause is pending in this court upon appeal by the defendant railroad company from a judgment of the circuit court of the city of St. Louis in favor of the plaintiff in the sum of five thousand dollars.
This is an action to recover damages for the death of plaintiff's husband, W. B. Powell, which occurred at Pacific, Missouri, on July 23, 1905, as a result of being struck by a passenger train operated by the defendant. At the time of the death of plaintiff's husband he resided with his wife in the city of St. Louis. Pacific is situated 36 miles southeast of St. Louis, and both the defendant railway company and the Missouri Pacific Railway Company pass through the town of Pacific. Plaintiff's husband was struck by the west-bound train of the defendant near where Elm street joins the defendant's tracks in Pacific, while he was walking between the main tracks of defendant in a westerly direction with his back to the engine that struck him.
The petition of the plaintiff embraced three counts, but at the close of the plaintiff's case the circuit court held that the evidence was insufficient to justify the submission of the cause to the jury upon either the second or third counts hence the cause, when all the evidence was heard, was submitted to the jury upon the first count alone. This count in substance alleges that plaintiff was the widow of William B. Powell, and that the defendant was at all times mentioned, and is now, a railroad corporation doing business as a common carrier in and by virtue of the laws of this State, and operating a steam railroad from the city of St. Louis to and through the town of Pacific, in the county of Franklin; that on the 23d day of July, 1905, defendant received her husband at the town of Pacific as a passenger upon one of its trains, and for a valuable consideration, then and there paid by the said William B. Powell to defendant, agreed to carry him safely to the city of St. Louis; that shortly after said William B. Powell had become a passenger on said train of defendant, the conductor in charge of said train came to said Powell and asked him for his fare; that said Powell tendered said conductor a railroad ticket issued by defendant, the destination of which was St. Louis, which ticket the defendant's conductor received and accepted, and after having accepted the same, then demanded of said William B. Powell further compensation as passenger on said train, which compensation the said Powell offered and agreed to pay and actually tendered to said conductor in good and lawful money; that said conductor refused to accept said sum of money so demanded by him and tendered to him by the said Powell, but then and there ordered said Powell to get off of the said train; that said Powell again offered to pay and again tendered said conductor said sum of money as additional fare for conveying and carrying him as a passenger from Pacific to St. Louis. That thereupon said conductor summoned other employees of the defendant, members of the train crew in charge of said train, and the said agents and servants of defendant with force and violence willfully and wrongfully ejected said William B. Powell from said train. And plaintiff avers that by reason thereof and as a direct result of such wrongful ejectment said William B. Powell was left by the defendant on its right of way and in a place of great danger, a great distance from the town of Pacific or any other station or usual stopping place, and a great distance from any dwelling house or light or platform, and that the time of such ejectment was 9:30 o'clock at night; that it was very dark at said place where said Powell was ejected, and there was a steep incline and ditch on either side of the railroad tracks of defendant and there was no house or light near said place to give the said Powell information whereby he might find a place of safety; that while her said husband was in the exercise of ordinary care in attempting to extricate himself from said place of danger and reach a place of safety, and while at and near said place of ejectment, and shortly thereafter, one of defendant's trains, in charge of the employees of the defendant, struck said William B. Powell with such great force and violence, while running at a rapid rate of speed, as to throw him against the ground with such force and violence as to inflict mortal injuries from which said husband died...
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