Reyburn v. Missouri Pacific Railway Company
| Decision Date | 16 March 1905 |
| Citation | 86 S.W. 174,187 Mo. 565 |
| Parties | ANNIE REYBURN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court. -- Hon. Wm. L. Jarott, Judge.
Affirmed.
R. T Railey for appellant.
(1) Under the well-established law of this State, the plaintiff is not entitled to recover, even under the humanitarian rule unless the evidence shows that the engineer and fireman actually saw deceased in peril before he was struck, and in time to have avoided the injury. Barker v. Railroad, 98 Mo. 50; Coatney v. Railroad, 151 Mo. 35; Davies v. Railroad, 159 Mo. 1; Tanner v Railroad, 161 Mo. 497; Carrier v. Railroad, 175 Mo. 470. The foregoing principle is clearly recognized as being elementary law in this State. Moore v. Railroad, 176 Mo. 528; Guyer v. Railroad, 174 Mo. 344; Van Bach v. Railroad, 171 Mo. 338; Feeback v. Railroad, 167 Mo. 206; Hook v. Railroad, 162 Mo. 569; Sharp v. Railroad, 161 Mo. 214; Holwerson v. Railroad, 157 Mo. 216; Peterson v. Railroad, 156 Mo. 552; Kreis v. Railroad, 148 Mo. 321; Culbertson v. Railroad, 140 Mo. 64; Vogg v. Railroad, 138 Mo. 180; Sinclair v. Railroad, 133 Mo. 233; Watson v. Railroad, 133 Mo. 246; Loring v. Railroad, 128 Mo. 360; Maxey v. Railroad, 113 Mo. 1; Boyd v. Railroad, 105 Mo. 371; Powell v. Railroad, 76 Mo. 80; Purl v. Railroad, 72 Mo. 168. "The fact that no signal was given tends to show that the deceased was not seen by the engineer, in the absence of any other evidence." The law presumes, until the contrary appears, that every man performs his duty. Omnia praesumuntur rite et solemniter esse acta. Co. Litt., 6b, 332; 1 Phil., Ev., 604, sec. 10; State ex rel. v. Bank, 120 Mo. 169; Yarnell v. Railroad, 113 Mo. 579; State ex rel. v. Williams, 99 Mo. 302; Mathias v. O'Niel, 94 Mo. 528; Hammond v. Gordon, 93 Mo. 226; Lenox v. Harrison, 88 Mo. 491; Bush v. White, 85 Mo. 356; Henry v. Dulle, 74 Mo. 451; Long v. Company, 68 Mo. 431. (2) Where the injury occurs in the country, outside of the corporate limits, and where the railroad track is fenced and appropriate cattle guards placed, the engineer is not bound to be on the lookout for trespassers, and in the operation of his train has the right to assume that the track is clear, and to run his train accordingly. Carrier v. Railroad, 175 Mo. 481; Barker v. Railroad, 98 Mo. 53; Feeback v. Railroad, 167 Mo. 215. We know of no case in this State or elsewhere, in respect to a trespasser, under such circumstances, where it has been held sufficient to warrant a recovery -- when it is necessary to show wanton, willful or reckless conduct -- unless it appears affirmatively that the engineer actually saw deceased, as charged in petition, in peril, in time to have avoided his injury. The opinion of Eddie Reyburn, in view of the physical facts, as to what the engineer and fireman saw, is no proof, but merely a conclusion. This court must declare the legal effect of the testimony, not from his opinion, but from the facts described in the case. Bartlett v. O'Donoghue, 72 Mo. 564; Nugent v. Milling Co., 131 Mo. 252; Ferguson v. Davidson, 147 Mo. 668; Epperson v. Company, 155 Mo. 383; Wilson v. Jackson, 167 Mo. 155; Rice v. Smith, 171 Mo. 336; Koons v. Railroad, 77 S.W. 761; State v. Kaufman, 45 Mo.App. 660. The opinion, therefore, of Eddie Reyburn, that the engineer and fireman saw his father was purely a matter of conjecture, and no verdict should be permitted to stand thereon. Peck v. Railroad, 31 Mo.App. 126; Perkins v. Railroad, 103 Mo. 58; O'Malley v. Railroad, 113 Mo. 325; Warner v. Railroad, 77 S.W. 70; Smart v. Kansas City, 91 Mo.App. 592; Wintuska's Admr. v. Railroad, 20 S.W. 820; Megow v. Railroad, 56 N.W. 1099.
Chas. E. Morrow and O. L. Houts for respondent.
(1) Plaintiff proved by the undisputed testimony that defendant's engineer and fireman saw her husband, the deceased, in a place of peril upon the track while they ran the train 350 yards certain, and 970 yards in all human probability, and in ample time, by the exercise of ordinary care, to have sounded the whistle and saved his life; that they failed to exercise such care and ran deceased down and killed him without sounding the whistle or giving him any warning. On that showing, although deceased was a trespasser, plaintiff had a right to go to a jury under the humanitarian doctrine, and the demurrer to the evidence was properly overruled. Hinzeman v. Railroad, 81 S.W. 1134; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Sinclair v. Railroad, 133 Mo. 233; Reardon v. Railroad, 114 Mo. 384; Rine v. Railroad, 100 Mo. 228; Adams v. Railroad, 74 Mo. 553; Gunther v. Railroad, 95 Mo. 286, 108 Mo. 18. This doctrine has been recognized and followed at almost every term of this court for a great many years; since the Adams and Rine cases at any rate. It is the doctrine of the Supreme Court of the United States. It is the settled law of this State and every other enlightened jurisdiction. Ives v. Railroad, 144 U.S. 408; Inland, etc., Co. v. Tolson, 139 U.S. 551. It is the English and common law doctrine. Bradley v. Railroad, 1 Mo.App. 744; Pollock on Torts (5 Ed.), 444-446. (2) From the fact that the fireman and engineer were adults, had good visions and were in a position to see the deceased moving along on the middle of the track, the jurors could directly and fairly conclude (if they saw proper to do it) that the engineer and fireman did see the deceased. Rine v. Railroad, 100 Mo. 234; Sinclair v. Railroad, 133 Mo. 241. In this case "the relative position of the deceased to the track at the time of the injury," was clearly shown. He was walking down the middle of the track, facing west. Two witnesses, whose testimony was not contradicted, testified to having seen the engineer and fireman in the cab, looking in the direction in which the deceased was travelling. (3) Defendant insists that, inasmuch as no signals were given before deceased was killed, and inasmuch as men are presumed to do their duty, therefore, the jury should have presumed that the fireman and engineer did not see deceased in peril. That is, with other presumptions, only indulged in the absence of evidence, and not in the teeth of evidence. The presumption could not be indulged in this case because the proof was that the fireman and engineer did see the deceased in peril. "The fact that no signals were given tends to show that the deceased was not seen by the engineer, in the absence of other evidence." Ham v. Barrett, 28 Mo. 388; Grover's Admr. v. Duhle, 19 Mo. 360; Moberly v. Railroad, 98 Mo. 183; Myer v. Kansas City, 108 Mo. 480; Ropp v. Railroad, 106 Mo. 428; Lynch v. Railroad, 112 Mo. 433; Ehrhart v. Deitrick, 118 Mo. 430; Bluedorn v. Railroad, 121 Mo. 270; Schepers v. Railroad, 126 Mo. 665; Weller v. Railroad, 120 Mo. 635; Bailey v. Railroad, 152 Mo. 449.
In Banc.
Plaintiff recovered judgment for $ 5,000 for the killing of her husband by a locomotive drawing a passenger train on defendant's railroad. Defendant appeals.
The petition states, in substance, that in the afternoon of February 22, 1902, plaintiff's husband, Joseph R. Reyburn, was walking west in the track of defendant's railroad about half a mile east of the town of Kingsville when a regular passenger train of defendant approached him from the rear, also going west, ran over him and killed him; that it was on a portion of defendant's track commonly used by the public for a foot path; that the servants of the defendant operating the train saw him and saw that he was in a position of peril and could, after so seeing him, have averted the accident by the exercise of ordinary care, with the means at hand, but negligently failed to do so. In addition to the statement that the defendant's servants actually saw the deceased and saw his peril in time to have saved him is also the statement that by the exercise of ordinary care they would have seen him, etc., but the case was tried on the theory that they did see him.
The testimony on the part of the plaintiff tended to prove as follows:
The train going west toward Kingsville passes over a rise at what is called Manly's crossing, which, by measurement is 970 yards, or 2910 feet, east of the point where Reyburn was struck. The track is straight and the view unobstructed from that point and it is slightly down grade. Reyburn and his son, a boy sixteen years old, were driving towards Kingsville in a wagon loaded with straw, in the public road which runs parallel with the railroad just outside the fence which encloses the right-of-way. Reyburn got out of the wagon, went through the railroad fence, and walked on in the railroad track, leaving his son to drive the wagon. As the road was muddy the wagon moved slowly and Reyburn got ahead of it some three hundred yards or more. There was another man, Burgin, walking on the track 200 yards behind Reyburn. The train in question whistled for the Manly crossing, which attracted Burgin's attention; he looked back when it came over the rise, and when it approached him he got off the track. He testified that the train was between a quarter and a half mile east of him when the whistle sounded, and that there was no other sound of whistle or bell until after the man was struck; he also testified that it was down grade, that the train came without puffing steam and not much noise. The boy testified that when the train approached Burgin the bell was sounded. Reyburn was a little deaf, but he could hear conversation in ordinary tone, also the cackling of fowls, and could hear the whistle and bell of a locomotive and puffing of a train.
This was a regular passenger train on its regular schedule time. The deceased lived near the railroad and was acquainted...
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