Shaw v. The Missouri Pacific Railway Company

• Decision Date: 15 June 1891
• Citation: 16 S.W. 832,104 Mo. 648
• Parties: Shaw et al., Appellants, v. The Missouri Pacific Railway Company
• Court: Missouri Supreme Court

16 S.W. 832

104 Mo. 648

Shaw et al., Appellants, v. The Missouri Pacific Railway Company

Supreme Court of Missouri, First Division

June 15, 1891

April 1891

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

Thomas & Hackney and J. D. Perkins for appellants.

(1) The trial court erred in sustaining defendant's demurrer to plaintiffs' evidence. When the persons in charge of a railroad train see persons on the track in front of the train in an exposed and dangerous condition, it is their duty to immediately use all efforts within their power, consistent with the safety of the persons and property on the train, to stop or check the speed of the train. Donahoe v Railroad, 83 Mo. 543. (2) "A demurrer to the evidence admits the truth of the facts in evidence and all reasonable inferences in plaintiffs' favor which can be drawn therefrom." Kelly v. Ry. & Transit Co., 95 Mo. 279. "When the facts are either disputed, or different inferences may be fairly drawn from the undisputed facts, the question should be submitted to the jury." Mauerman v. Siemerts, 71 Mo. 101; Huhn v Railroad, 92 Mo. 440; Norton v. Ittner, 56 Mo. 351. "A demurrer to the evidence admits the facts which the evidence establishes, or tends to establish, as well as all inferences which may be fairly drawn from them." Reiley v. Railroad, 94 Mo. 600. "When from the evidence the question of negligence is one about which reasonable minds may differ, it should be left to the jury to make the deduction from all the circumstances to determine the ultimate fact." Tabler v. Railroad, 93 Mo. 79. "If there is any evidence to support an issue it must go to the jury, who are the exclusive judges of its weight and sufficiency, however slight it may be, and whether it be direct or inferential." Charles v. Patch, 87 Mo. 450.

R. T. Railey for respondent.

(1) The court properly sustained defendant's demurrer to the evidence. The petition did not state facts sufficient to constitute a cause of action. The practice act requires plaintiff to state in his petition a plain and concise statement of the facts constituting his cause of action. The petition in the case at bar, stripped of unnecessary verbiage, simply says in effect, that defendant's servants in Jasper county, Missouri, on May 1, 1887, struck and killed plaintiffs' son, who was a minor and unmarried at the time, while negligently running a locomotive and train of cars. This is simply a conclusion, and does not tender an issue of any facts constituting the alleged negligence. The petition, therefore, is fatally defective. R. S. 1889, sec. 2038; R. S. 1879, sec. 3510; Gurley v. Railroad, 93 Mo. 450; Harrison v. Railroad, 74 Mo. 369; Waldhier v. Railroad, 71 Mo. 516. (2) The second paragraph of petition contains simply a bald conclusion, without stating where or how the injury occurred, what deceased was doing, what duty defendant owed him, or any other facts which tender an issue in the case. Under the foregoing authorities, the above allegation fails entirely to state a cause of action. The fourth paragraph of petition is equally as defective, and would seem to predicate plaintiffs' right of recovery, upon the failure of defendant to hire competent and skilful servants. It is also fatally defective, if this charge is attempted to be made, because it fails to show that defendant had any notice of such incompetency, or that it was guilty of negligence in employing or retaining incompetent servants. It also fails to plead the facts, constituting any negligence upon the part of defendant. Again, there was not a syllable of testimony in the case tending to show that defendant's servants were incompetent. On this proposition, the petition was not only fatally defective, but there was an entire failure of proof. (3) The deceased was a trespasser upon defendant's track. He was occupying an extremely perilous and dangerous position, and he and those with him were guilty of gross and inexcusable negligence in attempting to cross a lengthy and dangerous trestle and bridge, without any means of escape, where trains were constantly passing and repassing. The uncontradicted testimony of plaintiffs discloses that defendant's engineer in charge of the train which killed deceased, after becoming aware of his presence upon the track, immediately reversed his engine, and did everything within his power to stop the train and avert the injury complained of. Even, therefore, if the petition stated a good cause of action, yet the plaintiffs are not entitled to recover under the testimony, and the trial court properly sustained defendant's demurrer to the evidence. Barker v. Railroad, 98 Mo. 53; Yancy v. Railroad, 93 Mo. 437; Williams v. Railroad, 96 Mo. 283; Henze v. Railroad, 71 Mo. 636; Hallihan v. Railroad, 71 Mo. 116; Moody v. Railroad, 68 Mo. 473; Fletcher v. Railroad, 64 Mo. 490; Harlan v. Railroad, 64 Mo. 482. (4) The trial court has an opportunity to see the witnesses and hear them testify; it has a better opportunity than the appellate court to notice the conduct of the witnesses upon the stand; their manner of testifying; the vindictiveness and prejudice which characterize their testimony, and many other things which never reach this court. Can this court, therefore, in view of the uncontradicted testimony, say that the trial court committed error in sustaining the demurrer? It would have felt constrained to set aside a verdict in favor of plaintiffs, under the evidence; and we, therefore, insist that it properly took the case from the jury. Jackson v. Hardin, 83 Mo. 186; Powell v. Railroad, 76 Mo. 84; Landis v. Hamilton, 77 Mo. 561; Hansmann v. Hope, 20 Mo.App. 197.

OPINION

Brace, J.

This is an action for damages brought under section 2121, Revised Statutes, 1879, by plaintiffs, who are husband and wife, for the alleged negligent killing of their minor son.

The material allegations of the first paragraph of the petition on which alone any evidence was offered are as follows: "That on said first day of May, 1887, the defendant, by its agents, servants and employes, while running and operating a locomotive and train of cars over its said road, in said county, did so carelessly, negligently, recklessly, heedlessly and unskillfully run, manage and conduct its said locomotive and train of cars over its said road at a point in said county, that said locomotive and train of cars ran against, struck and fatally injured and wounded Frank Shaw, of which said injury and wounding the said Frank Shaw, on said first day of May, 1887, in said county, died."

The answer was a general denial with plea of contributory negligence. After the evidence for the plaintiffs had been heard, the court sustained a demurrer thereto. Thereupon the plaintiff took a nonsuit with leave, and judgment was rendered for the defendant. The court refusing to set aside the nonsuit, plaintiffs appealed.

The facts developed by plaintiffs' evidence are substantially as follows: On the first day of May, 1887, the plaintiffs' son, Frank Shaw, aged six years and nine months, was struck and killed by one of defendant's locomotives, running south over a trestle on its road at a point about ten feet from the south end of said trestle. The locomotive was drawing a train of twenty-six cars, nearly all heavily loaded, down a grade of fifty-two feet to the mile, and running at the rate of about twenty or twenty-five miles an hour. The trestle upon which the lad was struck was the south approach to an open truss bridge across Spring river, or a branch of it, near Carthage, Missouri. This bridge is approached from the north also by a similar trestle; the length of the north trestle is two hundred and fifty-six feet, of the bridge one hundred and twenty-four feet, and of the south trestle two hundred and fifty-four feet, making the whole length of the trestling and bridge six hundred and thirty-four feet. The cross ties on this trestling and bridge are from sixteen to eighteen inches apart, with no plank laid across them, and the only way for a footman to cross is by stepping from one to another, on the cross ties between the rails (they extending only from sixteen to eighteen inches outside the rails). The trestle is fifteen feet high at the south end of the bridge, and nineteen feet high at the north end; nine hundred and sixteen feet north of the beginning of the trestle north of the bridge beside the roadbed there is a lime kiln. North of the lime kiln about five hundred feet is the end of a curve around a bluff, where the engineer first comes in sight of the track along the trestling and bridge.

On the...