Shaw v. Chicago & A. R. Co.

• Decision Date: 30 March 1916
• Docket Number: No. 16497.,16497.
• Citation: 184 S.W. 1151
• Court: Missouri Supreme Court
• Parties: SHAW v. CHICAGO & A. R. CO.

184 S.W. 1151

SHAW v. CHICAGO & A. R. CO.

No. 16497.

Supreme Court of Missouri, Division No. 1.

March 30, 1916.

Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge.

Action by Frances Shaw, by William Shaw, her next friend, against the Chicago & Alton Railroad Company. From an order granting a new trial after verdict for the plaintiff, plaintiff appeals. Affirmed.

The following Missouri cases were cited in briefs as bearing on the question whether plaintiff was a trespasser or an invitee: Frye v. Railway, 200 Mo. 377, loc. cit. 400, 98 S. W. 566, 8 L. R. A. (N. S.) 1069; Ahnefeld v. Railroad, 212 Mo. loc. cit. 305, 111 S. W. 95; Everett v. Railroad, 214 Mo. loc. cit. 83, 84, 112 S. W. 486; Murphy v. Railroad, 228 Mo. loc. cit. 78, 128 S. W. 481; Glaser v. Rothschild, 221 Mo. 180, loc. cit. 186, 120 S. W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; Gurley v. Railroad, 104 Mo. 211, 16 S. W. 11; Morgan v. Railroad, 159 Mo. 276, 60 S. W. 195.

A. F. Smith, Boyle & Howell, and Guthrie, Gamble & Street, all of Kansas City, for appellant. Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondent.

BLAIR, J.

In the Jackson circuit court appellant began this action for damages for injuries she received when struck by one of respondent's trains. The appeal is taken from an order granting a new trial on the ground the evidence was insufficient to support a verdict against respondent company. No question arises on the pleadings, and these need not be set forth.

Appellant offered evidence tending to show: That at the time she was injured there was an unincorporated, but platted, district lying in Jackson county, containing a area of nearly three-fifths of a square mile and a population of 1,500 to 2,000. That respondent's single track and right of way, 100 feet wide, traversed the platted area mentioned, speaking generally, from the southeast to the northwest, about the center of the platted district. Dividing that portion of it platted under the name of Evanston, on the south, from a portion platted under the name of North Evanston, on the north, ran Independence avenue, a street 150 feet wide. Independence road lay about 1,200 feet north of Independence avenue and ran parallel to it, east and west. Between Independence avenue and Independence road respondent's track ran nearly north, curving somewhat to the west. South of Independence avenue and about 700 feet therefrom, respondent's track curves to the east. Running north and south between Independence avenue and Independence road are eight streets or avenues within a distance, from east to west, of about 2,900 feet. Windsor avenue adjoins respondent's right of way for the entire distance between the avenue and the road mentioned. Glenwood avenue crosses the north line of Independence avenue 34 feet east of respondent's right of way fence, and crosses the south line of Independence road 202 feet east of the right of way fence, being that much nearer the business portion (store and post office) of the platted district than is respondent's right of way. Respondent had fenced its right of way years before the accident, and its fence extended the full distance from Independence avenue to Independence road. On the north side of Independence avenue wing fences extended to points a short distance from the rail on either side and between the ends of these east and west wing fences respondent had long before constructed a cattle guard, designed for the uses to which such structures are ordinarily adapted. From Independence avenue northwardly to Independence road there was first a cut and then a fill, which latter, at the road mentioned, attained a height of 16 to 18 feet, and the north end of which was supported by a stone abutment from which an I-beam steel girder bridge (without superstructure) carried the track across Independence road and to the north side thereof to another abutment. These abutments were of stone, and are shown to have been of the usual sort, narrowing toward the top, the successive layers of stone being each shorter at each end than the one next below. The first or lowest one was 2 feet high or thick, and those above it were 14 inches thick. Each side of the abutment, therefore, presented the appearance of a succession of "steps," each step much higher than "steps" usually are, but resembling them in appearance. At Independence road the right of way wing fence extended to the southwest corner of the lower stone, leaving the stone portion of the abutment north of the line of this wing fence. The fences on the east and west sides of the right of way between Independence avenue and Independence road were shown to be "ordinary right of way fences" of five to seven wires and these wires were barbed. The fence had been in place for years and the wires were old, but none was broken or down; neither were any posts shown to be missing. Two or three paths leading from these fences to the track had been worn by footsteps of those who pried the fence wires apart and entered upon the right of way, some to cross the right of way and some to reach the track, upon which they walked north or south along or near the track, using, as exits, either the abutment or the cattle guard above mentioned. Sometimes staples would be pulled out and the wires of the fence would hang apart sufficiently to admit persons desiring to enter upon the right of way. One witness testified there was a gate in the fence at one point, and we shall specifically mention this testimony later. Persons also entered upon the right of way over the cattle guard at Independence avenue and by climbing up the abutment at Independence road. There were paths on each side of the track from the cattle guard to the abutment mentioned, and evidences of use of the abutment itself as a means of egress from and ingress to the right of way. The cattle guard was 11 feet long from north to south and was constructed of oaken timbers of like length, 2 inches thick at the base, resting upon the cross-ties and ballast. These timbers were 4½ inches in height, the upper 1¾ inches of each timber being beveled to a center line, and the timbers being 3 inches apart at the base, and this distance being maintained for 2¾ inches from the base or cross-ties up to the lower edge of the beveling. A space of 3 inches separated the nearest cattle guard timbers from the rails of the track. The abutments, tracks, cut, fill, fences, rails, and cattle guard were in the same condition they had been from the time people began to pass along and over them, and there was no evidence of anything unusual in the construction of any of them, or of any defect or disrepair, unless it is found in what is above set out concerning the fences enclosing the right of way. There was a crossing warning sign and an electric gong signal at Independence avenue, and signs at each end of the Independence road bridge, warning persons against crossing that bridge. There was no special sign forbidding trespassing on the tracks south of Independence road.

At the time she was injured appellant was a bright, intelligent, and more than usually strong and active girl of the age of 15½ years. She lived with her parents in Kansas City, Kan., and on a Sunday afternoon came by street car to North Evanston for the purpose of visiting kinsfolk. Leaving the street railway station she walked east along Independence avenue, crossing respondent's track thereon, observing, as she passed, the cattle guard and electric gong at the crossing, and thence proceeded to the home of her relations. During the afternoon she and a cousin, about 13 years old, walked about the neighborhood, and when she was ready to return to the electric railway station, in order to go to her home, she and her cousin, instead of going south to Independence avenue and thence west to the electric line, walked north to Independence road, thence west to respondent's overhead crossing, thence up the abutment to respondent's track, and thence down the track to the cattle guard at Independence avenue. In walking over the cattle guard, the extension sole of the shoe on appellant's left foot became wedged or caught between the rail and the cattle guard timber or strip inside the rail and paralleling it. Soon thereafter the electric gong announced the approach of respondent's train. Appellant failed in her efforts to release her foot, pushed her companion out of danger, threw herself down beside the track and saved...