Richmond v. The Missouri Pacific Railway Company

• Citation: 113 S.W. 708,133 Mo.App. 463
• Parties: MOSCOW K. RICHMOND, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Decision Date: 05 October 1908
• Court: Kansas Court of Appeals

113 S.W. 708

133 Mo.App. 463

MOSCOW K. RICHMOND, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 5, 1908

Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.

Judgment reversed.

Elijah Robinson for appellant.

(1) Defendant, the Missouri Pacific Railway Company, was not guilty of any negligence. (a) Defendant's engineer approached the crossing in question in the usual and customary manner and with his engine under perfect control. Kleiber v. Railroad, 107 Mo. 240. (b) Negligence consists of failure to discharge a duty which one person owes to another. Henry v. Railroad, 76 l. c. 295. (2) In this case plaintiff was occupying a position where he ought not to have been, and where defendant's employees had no reason to anticipate he would be, and they owed him no duty except not to wantonly or recklessly injure him. Hickey v. Railroad, 14 Allen 429; Carroll v. Transit Co., 107 Mo. 653; Tuley v. Railroad, 41 Mo.App 432; Harris v. Railroad, 89 Mo. 233; Railroad v Hoosey, 44 Am. Rep. 120; Brown v. Railroad, 49 Mich. 153; Doggett v. Railroad, 34 Ia. 285; Torrey v. Railroad, 147 Mass. 412; Bates v Railroad, 147 Mass. 255; Files v. Railroad, 149 Mass. 206. (3) So far as his legal rights in relation to this defendant are concerned, he occupies the position of a trespasser on the Belt Line track approaching the crossing in question, and this defendant would have owed no duty to such trespasser except not to wantonly or recklessly injure him. Carr v. Railroad, 195 Mo. 214; Railroad v. Monday, 31 A. & E. R. R. Cases, 425; Turner v. Thomas, 71 Mo. 596; Henry v. Railroad, 76 Mo. 425. (4) Plaintiff's injury resulted from a rash apprehension of danger that did not really exist, and this defendant ought not to be held liable therefor. Kleiber v. Railroad, 107 Mo. 240; Railroad v. Felton, 33 A. & E. R. R. Cases, 533; Jones v. Boyce, 1 Star. 483; Coulter v. Express Co., 56 N.Y. 585; Peck v. Railroad, 50 Conn. 379; Harris v. Railroad, 89 Mo. 233; Smotherman v. Railroad, 29 Mo.App. 265; Railroad v. Wallen, 65 Tex. 568; Railroad v. Ware (Ky.), 1 S.W. 493.

Walsh & Morrison for respondent.

(1) Defendant was guilty of negligence. Kleiber v. Railroad, 107 Mo. 240; Morgan v. Railroad, 159 Mo. 279; Railroad v. Stoner, 51 F. 649; Railroad v. Railroad, 98 Mo.App. 222; McManus v. Railroad, 116 Mo.App. 110. (2) Negligence on the part of the Belt Line crew was not imputable to plaintiff. Sluder v. Transit Co., 189 Mo. 107. (3) Plaintiff was rightfully upon the train. Carroll v. Railroad, 88 Mo. 248; Railroad v. Blumenthal, 160 Ill. 40, 43 N.E. 809; Railroad v. Ashley, 67 F. 209, 14 C. C. A. 368; Railroad v. Beebe, 174 Ill. 13, 50 N.E. 1019; Railroad v. Lockwood, 17 Wall. 357; Whitehead v. Railroad, 99 Mo. 263; Railroad v. Brown, 123 Ill. 162, 14 N.E. 197. Riding on top of the car was not contributory negligence. Railroad v. Carpenter, 56 F. 451; 6 Cyc. 653. (4) Defendant's negligence was the proximate cause of plaintiff's injury. Kleiber v. Railroad, 107 Mo. 249; McManus v. Railroad, 116 Mo.App. 110; Ephland v. Railroad, 57 Mo.App. 147; McPeak v. Railroad, 128 Mo. 652; Bischoff v. Railroad, 121 Mo. 224; Williamson v. Transit Co., 202 Mo. 376. (5) Plaintiff was not negligent in jumping from the car. Kleiber v. Railroad, supra; Bischoff v. Railroad, supra; Adams v. Railroad, 74 Mo. 560; Ephland v. Railroad, supra.

OPINION

JOHNSON, J.

Plaintiff brought suit against the Missouri Pacific Railway Company and the Kansas City Belt Railway Company for damages on account of personal injuries alleged to have been caused by the negligence of the defendants. He dismissed the Belt Railway Company from the action during the trial and recovered judgment against the appealing defendant in the sum of two thousand dollars.

The main contention of defendant is that the court should have directed a verdict in its favor. Under the terms of a written contract, plaintiff delivered two cars of cattle to the Choctaw, Oklahoma & Gulf Railroad Company at Hartshorn, Indian Territory, for shipment to the market at Kansas City. The contract was not introduced in evidence and we are not advised of its terms, but it appears from the evidence that a through shipment was contemplated by a route which required the initial carrier to deliver the cars to the Kansas City Southern Railway Company at Howe, Indian Territory, for transportation to the Kansas City Terminal Yards of that company located at Sheffield, a town on the eastern border of Kansas City, and required that company to deliver them at Sheffield to the Belt Railway. A stock pass was issued to plaintiff by the Choctaw Company which entitled him to free transportation to Kansas City on the trains that carried his cattle, and he used the pass to Sheffield. The caboose in which he arrived at that point was stopped close to the tracks of the street railway company and plaintiff could have gone to the stockyards on a street car, but he elected to ride on the Belt Line train which picked up his cars of cattle. That train carried no caboose or other passenger car and consisted of an engine and forty-five freight cars. The engine was at the east end of the train and plaintiff's two cars were at the opposite end. Plaintiff placed himself on the top of the second car from the end with the knowledge and consent of the trainmen. The foreman of the crew was on the top of the same car, or on that of the end car, and brakemen were stationed on different parts of the train. The stock cars were to be taken to the quarantine yards of the Kansas City Stock Yards Company, some five or six miles westward. They had arrived at Sheffield in the middle of the afternoon of July 1, 1903, too late to reach the stock yards for that day's market. It does not appear that plaintiff could have performed any service to the cattle by riding on the top of the Belt Line train. He could have reached the stockyards as quickly or, perhaps, more quickly on the street car and it was not necessary for him to be there at the moment of their arrival. On that subject he testified on cross-examination:

"Q. Was it necessary for someone to go with the cattle to look after them? A. Not altogether. I ship sometimes without sending anyone. Q. You could have come up just as well on a passenger train? A. Yes, but it just cost me a little piece of money . . . Q. You had shipped sufficiently to know that the cattle would be handled by the railroad company and the stockyards company and assigned to the pen for the commission man to whom they were consigned, didn't you? A. Yes, sir. Q. And that you could not help or hinder that in any way even if you were there? A. Yes, sir. I like to be there. Q. And you knew that those cattle would not be offered for sale until the next morning, didn't you, if they got in here at four or five o'clock in the evening? A. Yes, sir. Q. You knew that; so there was nothing you could do at the quarantine yards that afternoon, was there? A. I could have went over and seen them unloaded and see what kind of condition they were in and ordered them fed."

Shortly after the Belt Line train we have described started on its westward journey, it approached the track of defendant which runs north and south, stopped when the end car was, perhaps, 150 feet from the crossing, waited a few minutes for a clear track and after the engine gave the usual signal, started forward. Just before this, a switch engine of defendant, which had been working in that vicinity crossed from the south to a point from 150 to 200 feet north of the crossing, stopped for some cars to be coupled and then started back towards the crossing pulling three cars. The engine was headed south, the engineer was seated in the west side of the cab and the fireman was shoveling coal into the fire. The Belt Line train began moving toward the crossing after the switch engine had crossed from the south, and before it started to return, and had the right of way. It is admitted that neither the engineer nor fireman saw the Belt Line train nor knew of its presence. The engineer had his view toward the east obstructed by the boiler and the fireman was not looking in that direction and his attention was absorbed by the work he was doing. Neither heard the signal given by the Belt Line engine and the switch engine did not whistle for the crossing. When the foreman of the Belt Line train first observed this situation, each train was running toward the crossing at approximately four or five miles per hour. Plaintiff fixes the rate of speed at from ten to twelve miles per hour, but his estimate is so obviously in conflict with the plain physical facts of the situation that it possesses no evidentiary value. Fearing a collision, the foreman, who then was on the end car, began shouting and frantically making the stop signal. At the same instant, he ran to the ladder on the north side of the car and descended rapidly to the ground. At that time, he was from fifty to seventy-five feet from the crossing. He ran west as fast as he could to defendant's track to a point where defendant's engineer could see him and, by vehement gestures and language, conveyed his warning. He testified that the switch engine was stopped in twenty or twenty-five feet after the reception of this warning and that it was from five to ten feet from the crossing when it came to a full stop. Plaintiff states that the engine was closer than that to the car on which he had been riding. No collision occurred and no damage was done except the injuries plaintiff received in his attempt to escape from what appeared to him imminent peril. When he observed the actions of the foreman and what occasioned them, he became greatly alarmed for his own safety and ran to the ladder at...