Reardon v. The Missouri Pacific Railway Company

• Decision Date: 28 February 1893
• Citation: 21 S.W. 731,114 Mo. 384
• Parties: Reardon v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

21 S.W. 731

114 Mo. 384

Reardon v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

February 28, 1893

[Copyrighted Material Omitted]

Appeal from Johnson Circuit Court. -- Hon. C. W. Sloan, Judge.

This action was begun in the circuit court of Cass county, and a change of venue granted to Johnson county.

The petition alleges that, while plaintiff was on the track of the defendant, in an exposed and dangerous condition, the servants of the defendant, who were controlling, running and managing its cars, ran the same upon and over plaintiff's right leg; that at the time they were running said locomotive and cars in a careless, negligent and reckless manner; that said servants and agents could and in fact did see the plaintiff upon the track in such perilous position in due time to have checked or stopped said cars and averted the injury to plaintiff, and avers that by reason of said negligence he lost his leg and was damaged in the sum of $ 20,000.

The answer was a general denial and contributory negligence. Reply as to new matter.

The case was tried on the fifteenth day of May, 1889, and the evidence adduced at the trial tended to show that on the morning of the accident defendant's Mogul engine number 906 was pulling a local freight train through the yards of defendant at Pleasant Hill; that plaintiff had gone to said yards to see his brother-in-law, A. H. Page, who was an engineer in defendant's employ, and whose engine was standing on track number 2 on the south side of the main track, to learn from said Page, whether his (plaintiff's) brother would pass through Pleasant Hill, that he might take a lunch to him; that when plaintiff left Page's engine he went directly to and upon the main track and started to walk east, as though going down to the Wyoming street crossing where he would leave the yard to go direct to his mother's house, which was a little west of the line due north from Page's engine. The plaintiff himself testified that he was not going to the crossing, but was going diagonally northeast across the track and out of the yard. The preponderance of the evidence showed that he took several steps east while between the rails of the main track; at the time engine number 906 with a train of cars attached to it was approaching from the west; that almost immediately after plaintiff stepped upon the track, the engineer sounded the alarm or danger whistle -- being several short blasts. Plaintiff upon hearing the whistle turned his head, looked over his right shoulder in the direction of the approaching engine and at once fell backwards on the track. He was then with his head southwest, his legs being across the south rail and his feet southeast. He rolled over to the east turned upon his face, and appeared to be struggling to get himself entirely off the track, and succeeded in doing so with the exception of his right ankle and foot which were run upon by the train.

Plaintiff himself testified that when he looked back his toe tripped upon something, and he fell forward between the rails, then rolled over, and got all of his person off the track except his right foot and ankle. It also appeared that plaintiff had, prior to the injury, suffered a paralytic stroke on his left side, and that said stroke disabled him from using his left arm and leg with freedom. There was a vast amount of evidence adduced by both parties, and, as is usual in such cases, there was a great diversity of opinion among the witnesses upon the questions of the distance at which the engine was from plaintiff at the time he got upon the track the distance at which he was from the engine at the time he fell upon the track; the distance within which the train could have been stopped; its speed at the time, and as to the best means of stopping an engine under such circumstances.

The engineer testified he did not reverse his engine nor apply sand. He was asked if on a former trial he did not answer that the most effectual way to stop an engine was to reverse it, and he answered "Oh, yes." And when asked why he did not reverse his engine on this occasion, said "Perhaps I didn't think of it at the time." The evidence on part of plaintiff tended to show the train could have been stopped in a distance of from seventy-five to one hundred feet, and on part of defendant from three hundred to four hundred feet. The train was running from seven to twelve miles an hour.

The jury returned a verdict for plaintiff for $ 4,500.

The court gave the following instructions for the plaintiff:

"1. The court instructs the jury that if they believe from the evidence that plaintiff was struck and injured by the locomotive of the defendant, as stated in the petition; that the agents of the defendant, in charge of said engine, saw plaintiff in a position of imminent danger before he was struck; that the position of plaintiff was such that an ordinarily prudent person running a locomotive would have believed that he was not going to be able to get off the track in time to avoid the injury; that the agents of defendant running said locomotive failed to exercise ordinary care -- that is, failed to use their ordinary means and appliances for stopping the engine and train -- after plaintiff's condition was seen; and that if ordinary care had been used by said agents after plaintiff's perilous position was seen, that the train would have been stopped or checked and the injury averted, then defendant is liable and you should find for the plaintiff.

"2. If the jury find and believe from all the evidence in the case that the plaintiff was on the track of defendant in the town of Pleasant Hill, Cass county, Missouri; that the agents and servants of defendant, operating an engine and cars of defendant on its line of railway in said town of Pleasant Hill, saw the plaintiff while so doing, in front of said engine and cars, and became aware that said plaintiff was in a dangerous condition in time to have so stopped or slackened the speed of said engine and cars in time to have averted the injury to plaintiff in safety to themselves and the said engine and cars, but failed to do so, then the immediate cause of the injury was the negligence and want of care of defendant's servants and agents, directly causing or resulting in the injury of the plaintiff, Reardon; then the jury are instructed that the defendant is responsible for such negligence and carelessness on the part of its agents and servants, and the jury will find for plaintiff.

"3. The jury are instructed that except at a public road and a street crossing a railroad company is entitled to the exclusive use of its track, and any person walking thereon except at such places, is wrongfully on such track; yet, the fact that such person is on the property wrongfully and negligently does not discharge them from the observance of due care toward him after he is discovered in a dangerous and exposed condition by those in charge; nor does the fact of his so being on the track give defendant or its employes in running trains the right to run upon and injure him if it can be avoided by any means in the power of such employes consistent with their own safety and that of the engine and cars after the dangerous position of such person was discovered, although the plaintiff was wrongfully and improperly on the track of defendant, and was guilty of negligence in going thereon; yet, if the jury believe from the evidence that those in charge of the engine and cars could, by a proper observance of their duties, have stopped or so checked or slackened the speed of the engine and cars by any means in their power consistent with their safety and that of the engine and cars, so as to have prevented the accident at any time after they saw him on the track, and the danger to which he was exposed, but that they failed to use the means in their power consistent with their safety and that of said train, in order to stop or check said engine and cars, or to prevent said accident, then the persons in charge of the engine and cars were guilty of negligence, for which defendant is responsible.

"4. The jury are instructed that it is negligence on the part of any person to go upon a railroad track at any point other than a street or public crossing; yet, if the jury believe from the evidence in this cause that Edgar Reardon went upon the track of defendant and thereby was guilty of negligence, but that he was injured by the negligence of the defendant as the direct cause of the injury, which negligence of the defendant occurred after the said Reardon was discovered upon the track by defendant's servants in charge of the engine in time to have stopped the engine and train with safety and thereby have averted the calamity, then the defendant is liable; and if the jury so believe from the evidence they will find for plaintiff.

"5. If the jury believe and find from the evidence in this case that on the eleventh day of April, A. D. 1889, the defendant by its agents, servants and employes was running and operating an engine with cars attached on and over its track in the city of Pleasant Hill, Cass county, Missouri, and whilst so running and operating an engine with cars as aforesaid, negligently and carelessly ran said engine and cars upon and over said plaintiff's right foot and ankle thereby causing the injuries mentioned in plaintiff's petition, and for which this suit was brought, and that said engine and cars were so run in the manner aforesaid upon plaintiff after the agents and servants in charge of said engine and cars became aware of the presence of the plaintiff on the track of defendant; if the jury shall find from the evidence that either of said agents or servants did so become aware of the presence of plai...