E. S. Hamilton v. Kansas City Southern Railway Company

• Citation: 157 S.W. 622,250 Mo. 714
• Parties: E. S. HAMILTON v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Decision Date: 31 May 1913
• Court: Missouri Supreme Court

157 S.W. 622

250 Mo. 714

E. S. HAMILTON v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from Newton Circuit Court. -- Hon. F. C. Johnston, Judge.

Reversed.

S. W Moore, Cyrus Crane and O. L. Cravens for appellant.

The demurrer to the evidence tendered by defendant should have been sustained. (1) Deceased's death was not the proximate cause of his alleged negligent expulsion, but it happened while he was a trespasser and there is no proof whatever of any of the circumstances attending the accident. Hughes v. Railroad, 67 S.W. 984; Gwyn v Railroad, 155 F. 88; Brown v. Railroad, 103 Ky 211; Railroad v. Logan, 88 Ky. 232; Gaulkler v. Railroad, 130 Mich. 166; Roseman v. Railroad, 112 S.C. 709, 19 L. R. A. 327; Railroad v. Bryant, 72 S.W. 885; Dobney v. Railroad, 140 Ill.App. 269; Railroad v. Valleley, 32 Ohio St. 345; Henry v. Railroad, 76 Mo. 288; Logan v. Railroad, 96 Mo.App. 461; Warner v. Railroad, 178 Mo. 125; Veatch v. Railroad, 145 Mo.App. 232; Davis v. Railroad, 155 Mo.App. 317; Pennel v. Railroad, 153 Mo.App. 566; Koegel v. Railroad, 181 Mo. 379; Cahill v. Railroad, 205 Mo. 393; Ginnichio v. Railroad, 155 Mo.App. 163; Ries v. Transit Co., 179 Mo. 1; Moore v. Railroad, 176 Mo. 528; Engleking v. Railroad, 187 Mo. 158; Hufft v. Railroad, 222 Mo. 301. (2) Deceased's contributory negligence bars plaintiff. Payne v. Railroad, 155 F. 76; Yarnall v. Railroad, 75 Mo. 575; Ayers v. Railroad, 190 Mo. 228; Trigg v. Transit Co., 215 Mo. 521; Murphy v. Railroad, 228 Mo. 83; Frye v. Railroad, 200 Mo. 377; Morgan v. Railroad, 196 F. 449; McGanley v. Transit Co., 179 Mo. 583. (3) The humanitarian rule does not apply because deceased was a trespasser. Frye v. Railroad, 200 Mo. 377; Yarnall v. Railroad, 75 Mo. 575; White on Per. Inj. on Railroads, sec. 873; Ervin v. Railroad, 158 Mo.App. 1; Koegel v. Railroad, 181 Mo. 396; Hyde v. Railroad, 110 Mo. 272; Pulley v. Railroad, 94 Iowa 567; Engleking v. Railroad, 187 Mo. 158; Beiser v. Railroad, 92 S.W. 928; Hamlin v. Railroad, 37 Wash. 448. (4) The humanitarian rule does not obtain in this case because there is no proof of unity of time, place and public use of the track. Chamberlin v. Railroad, 133 Mo. 587; Ahnefeld v. Railroad, 212 Mo. 300; Green v. Railroad, 211 Mo. 44; Ayers v. Railroad, 190 Mo. 228; Frye v. Railroad, 200 Mo. 401; Trigg v. Transit Co., 215 Mo. 521; Epstein v. Railroad, 197 Mo. 720.

R. M. Sheppard, Hugh Dabbs and J. A. Sturgis for respondent.

(1) The petition alleged, the testimony proved, and the jury found that deceased, at the time he was taken from appellant's train, was so intoxicated as to be unable to take care of himself, and was left by appellant's agents in such a place and under such circumstances as to expose him to unnecessary peril, and that by reason of this, he was run over by one of appellant's trains and killed. Under these circumstances, the proximate cause of Hamilton's death was appellant's negligence, and the question as to whether or not deceased was a trespasser on appellant's track does not enter into the case. Phillips v. Railroad, 211 Mo. 419; Sullivan v. Railroad, 81 Ky. 624, 50 Am. Rep. 186; Haug v. Railroad, 42 L. R. A. 667; Brown v. Railroad, 51 Iowa 235; Weber v. Railroad, 33 Kan. 543; Connolly v. Railroad, 3 L. R. A. 133; Railroad v. Johnson, 108 Ala. 62, 31 L. R. A. 372; Turner v. Railroad, 60 Ala. 621; Gill v. Railroad, 37 Hun, 107; Atkinson v. Railroad, 90 Mo.App. 489; Ellis v. Railroad, 97 Ky. 330; Harless v. Railroad, 123 Mo.App. 22; 6 Cyc. 563; Wood on Railway Law, secs. 363-364; 4 Elliott on Railroads, sec. 1637; 3 Thompson on Negligence, sec. 2740. (2) The evidence in the case shows that deceased was not a trespasser, but a licensee, and that he was injured at a place where the law made it the duty of those in charge of appellant's trains to keep a lookout for persons on the track. The court, therefore, properly submitted the case to the jury under instruction number two given for plaintiff. Murphy v. Railroad, 228 Mo. 82; Bunyan v. Railroad, 127 Mo. 12; Woods v. Railroad, 188 Mo. 12; Fears v. Railroad, 180 Mo. 208; Riggs v. Railroad, 216 Mo. 389; Morgan v. Railroad, 159 Mo. 250; Dutcher v. Railroad, 241 Mo. 137; Clark v. Railroad, 242 Mo. 596; Kelley v. Railroad, 101 Mo. 74.

OPINION

BOND, J.

STATEMENT BY THE COURT.

The plaintiff is the widow of W. J. Hamilton and sues for injuries causing his death in two counts: (1st), That defendant negligently ejected him from its train while a passenger thereon and in such a state of intoxication as to be unable to care for his own safety at a place which was known by defendant to be dangerous; (2nd), That her husband was killed at a point on the track of defendant midway between the station of Lanagan and the flag station of Madge or Elk Springs, where its track was commonly used as a pathway and when defendant was under the duty to look out for persons so using it, and where he was killed by the negligent failure to stop the train after he could have been seen on its track at a sufficient distance to have stopped the train if that duty had been observed.

The answer was a general denial and plea of contributory negligence and of the unconstitutionality of the statute sued upon.

The evidence for the plaintiff was that her husband, while drunk, became a passenger on defendant's road at Neosho, about seven o'clock p. m., June 15, 1908; that his ticket read to Lanagan, a town south of Neosho; that after he had passed his point of destination, he was assisted from the train at a flag station, two and a half miles farther south, known as Madge or Elk Springs. It was about nine o'clock when the train reached this point. There was a post office there, but no ticket office; five or six families lived there, but there was no hotel or boarding house. Plaintiff's husband, although drunk at the time, applied to one of the residents, Mr. Kinney, for the services of his son to conduct him across a railroad bridge, eight hundred feet long and situated about two hundred and fifty feet north of the town. This lad returned after he had performed the service, and the plaintiff's husband was not thereafter seen until his body was discovered next morning on the east side of defendant's track about one mile from the flag station, or half way between it and Lanagan. The body gave evidence that the deceased had been struck and killed by a passing train. Only two trains passed that point on that night -- one a freight at eleven p.m.; the other a passenger at eleven: forty-five p.m. There was no evidence which of the trains caused the death of plaintiff's husband. When discovered on the morning of June 16th, his body was lying at a spot two hundred yards north of a ten-degree curve in defendant's road and which would have been visible to a person on the lookout of a northbound train at a greater distance than two hundred yards. There was a country road between Elk Springs and Lanagan which crossed several streams, some of which were not fordable at the time of the accident. Many persons used the railroad track and bridge in going from Elk Springs to Lanagan. The defendant's evidence negatived any knowledge of the accident and tended to show that its track was fenced and trespassers were warned not to use it.

At the conclusion of the trial, the jury returned a verdict for $ 5000. Defendant moved for judgment, notwithstanding the verdict, on the ground that the statute under which this action is brought, after its amendment in 1905, was violative of the Federal and State Constitutions, in certain respects pointed out in its answer in this cause, for which reason defendant prosecuted its appeal to this court, where it complains of the refusal of the trial court to sustain its demurrers to the evidence and the giving and refusing instructions and other matters, which, if necessary, will be adverted to in the opinion.

OPINION.

BOND, J. (After stating the facts as above).

I. The constitutional question raised in the answer touching the validity of the Damage Act as now amended has been decided since this appeal was taken contrary to the position of appellant. [Burge v. Railroad, 244 Mo. 76.] Hence, we retain jurisdiction of the case, which we would not do had the above decision been rendered at the time the case was appealed. [Taylor v. Railroad, 207 Mo. 499.]

II. The questions decisive of this appeal are, whether under the testimony of respondent and the legitimate inference arising therefrom, there could be any recovery on either of the grounds alleged in her petition. The deceased was not ejected from the train for refusing to pay fare or any misbehavior whilst a passenger. He was simply put off at a flag station beyond the point of his intended destination because he had failed to leave when it arrived there. He was not left at a place where he could not have secured accommodation, as far as the record shows, nor where he was exposed to any dangers which would not beset a man in his condition elsewhere. Indeed, had he been left in a traffic-crowded thoroughfare of a city, he might have been exposed to greater peril than at the quiet flag station where he was landed. He met with no mishap incident to the place where he disembarked. He realized his condition and hired a young person to conduct him across a bridge of the railroad whose track he desired to follow until he reached Lanagan. It is indisputable that he had traveled this track for a mile or more before he was injured. Under these facts, no cause of action arose in favor of his widow for his being left at the flag station, for the reason that it was not a place necessarily dangerous to an intoxicated person, nor was he injured by any peril to which he was exposed there. The case...