Sinclair v. The Chicago, Burlington & Kansas City Railway Co.
| Decision Date | 10 March 1896 |
| Citation | 34 S.W. 76,133 Mo. 233 |
| Parties | Sinclair v. The Chicago, Burlington & Kansas City Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.
Reversed.
H. H Trimble and Palmer Trimble, with whom is J. H. Carroll, for appellant.
(1) Evidence of the custom of persons to walk on the track where deceased was struck, is incompetent. Yarnall v Railroad, 75 Mo. 575; Barney v. Railroad, 126 Mo. 388; Gurley v. Railroad, 104 Mo. 211; Masser v. Railroad, 27 N.W. 776; Thomas v. Railroad, 61 N.W. 968; Hyde v. Railroad, 110 Mo. 272. (2) Sinclair was a trespasser and appellant was not bound to look out for him. Maher v. Railroad, 64 Mo. 267; Yarnall v. Railroad, supra; Williams v. Railroad, 96 Mo 275; Shaw v. Railroad, 104 Mo. 648; Boyd v. Railroad, 105 Mo. 371; Reardon v. Railroad, 114 Mo. 384; Bell v. Railroad, 72 Mo. 50; Barker v. Railroad, 98 Mo. 53; Thomas v. Railroad, 61 N.W. 968; Bouwmeester v. Railroad, 34 N.W. 414. (3) Appellant owed no duty, under the circumstances of this case, till the trainmen saw that he was in a perilous situation. Authorities, supra. The duty arose, not when the trainmen saw Sinclair, but when they became aware of his peril. Plaintiff failed to prove negligence after the trainmen became aware of his peril, hence the case should not have gone to the jury. Maloy v. Railroad, 84 Mo. 270; Masser v. Railroad, 27 N.W. 776; Zimmerman v. Railroad, 71 Mo. 476; Purl v. Railroad, 72 Mo. 168; Powell v. Railroad, 76 Mo. 80; Bouwmeester v. Railroad, 34 N.W. 414. (4) The fact that the railroad track was used as a footpath at the point where the deceased was struck, did not change the rule suggested in point 2, nor impose on the trainmen the duty of looking out for the deceased. Yarnall v. Railroad, 75 Mo. 575; Masser v. Railroad, 27 N.W. 776; Railroad v. Mosley, 6 C. C. A. 641. (5) The trainmen had a right to presume that Sinclair would get off the track in time to avoid a collision. Reardon v. Railroad, 114 Mo. 405; Bell v. Railroad, 72 Mo. 50 (62); Apsey v. Railroad, 83 Mich. 439; Bouwmeester v. Railroad, 34 N.W. 414; Moody v. Railroad, 68 Mo. 470; Dunkman v. Railroad, 95 Mo. 232; Gunther v. Railroad, 95 Mo. 287; Hilz v. Railroad, 101 Mo. 36. (6) The burden of proving that the trainmen were negligent, after discovering Sinclair's peril, is on appellee. There was no evidence of such negligence. Barker v. Railroad, 98 Mo. 50, 53, 54, 55; Hallihan v. Railroad, 71 Mo. 113, 116, 117, 118; Barney v. Railroad, 126 Mo. 372; Zimmerman v. Railroad, 71 Mo. 477; Railroad v. Howard, 82 Ky. 212; Railroad v. Stroud, 2 S.W. 171, 172, 173. (7) Presumption is that the trainmen did their duty. Loring v. Railroad, 31 S.W. 6. (8) No evidence that the trainmen could have stopped the train in less time than it was stopped. Loring v. Railroad, 31 S.W. 6; Barker v. Railroad, 98 Mo. 53.
C. A. Mosman and A. W. Mullins also for appellant.
(1) Under the pleadings it was error for the court to allow plaintiff to show that pedestrians were accustomed to walk along the track where Sinclair was killed. Glass v. Railroad, 10 So. Rep. 215; Railroad v. Meadows, 10 So. Rep. 141; Railroad v. Brown, 18 S.W. 670. (2) The reception of the incompetent evidence offered by the party having the burden of proof, is not cured by an instruction withdrawing it from the jury, when it is the only evidence bearing directly on the issue. Mueller v. Weitz, 56 Mo.App. 36; Sidekum v. Railroad, 93 Mo. 406. (3) But we contend that evidence of this character could not have any bearing on the question involved in this action. The true rule is, that defendant's servants were not bound to look out for Sinclair at all, and owed him no duty. At most, the passive acquiescence of defendants in the use of its track only gave to him the rights of a licensee. A licensee enjoys his license with its concomitant perils. A landowner owes no duty to look out for a licensee. Barney v. Railroad, 126 Mo. 389; June v. Railroad, 26 N.E. 238; Blanchard v. Railroad, 18 N.E. 799; Glass v. Railroad, 10 So. Rep. 217. (4) The court erred in giving to the jury the plaintiff's first instruction. It required the jury to find that the defendant's engineer became aware of Sinclair's peril in time to have averted the injury. There was absolutely no evidence which would warrant the court in submitting this issue to the jury. Defendant's engineer had the right to presume that Sinclair would leave the track. Maloy Case, 84 Mo. 275; Boyd v. Railroad, 105 Mo. 375; Hyde v. Railroad, 110 Mo. 279; Reardon's Case, 114 Mo. 405. (5) A trial court should not give instructions on a matter of negligence, where there is no evidence to support them. Evans v. Railroad, 106 Mo. 594.
John P. Butler and J. W. Clapp for respondent.
(1) Instruction number 1 given for plaintiff is a clean cut declaration of the law applied to the case in hand. It is a sound exposition of the law, founded on the broad principles of humanity. It is likewise well grounded on a sound public policy. The principle it enunciates has met with the frequent approval of this court. Nor is it subject to the criticisms made by appellant's counsel. Guenther v. Railroad, 95 Mo. 232; Rine v. Railroad, 100 Mo. 228; Hanlon v. Railroad, 104 Mo. 381; Fiedler v. Railroad, 107 Mo. 645. (2) These cases have met with the frequent approval of this court. Guenther v. Railroad, 108 Mo. 18; Lynch v. Railroad, 111 Mo. 601; Reardon v. Railroad, 114 Mo. 384; Prewitt v. Eddy, 115 Mo. 283; Hicks v. Railroad, 124 Mo. 115; Bunyan v. Railroad, 127 Mo. 12. (3) The demurrer to the evidence at the close of plaintiff's case and again renewed by an instruction of like effect was properly refused. Where the defendant offers a demurrer to the evidence in his own behalf, and the evidence as a whole entitles the plaintiff to go to the jury, the supreme court will disregard the demurrer, even though it should have been sustained in the first instance. Bowen v. Railroad, 95 Mo. 298; Guenther v. Railroad, 95 Mo. 286. (4) The court did not err in refusing instructions as asked by the appellant nor in modifying the same.
This is an action by the widow of John B. Sinclair to recover the statutory damages of $ 5,000 for the death of her husband by the alleged negligence of the defendant in the operation of one of its trains. The negligence charged in the petition is that defendant's engineer, "after seeing the dangerous position in which plaintiff's deceased husband was situated, and seeing the imminent peril, and that the deceased was unaware of the near and dangerous approach of said train, negligently failed to sound the usual and ordinary danger signal in time to avert the injury complained of, and * * * negligently failed and neglected to use the air brakes and other appliances provided for stopping the train, and negligently failed to use the appliances provided and at hand for putting said train under control, but on the contrary thereof, recklessly, negligently, willfully, and wantonly ran its said engine and cars upon and against the plaintiff's said husband." The answer was a general denial and a plea of contributory negligence. The case was tried to a jury upon the pleadings, and resulted in a judgment for plaintiff from which defendant has appealed.
The evidence shows that defendant owned and operated a railroad through Sullivan county. From the village of Boynton, a station on the road, the track ran in a northwesterly direction through a farming country. A short distance from the station the railroad crosses a public road from which it is straight and the view unobstructed for at least a fourth of a mile. From the road crossing north the railroad track is fenced.
John B. Sinclair, at the time of his death was about seventy-two years old and lived two and one half miles northwest of the station. On the thirtieth day of December, 1892, deceased walked to Boynton station. The north bound train was due there at a few minutes before 3 o'clock, which deceased knew, but there was a report from some unknown source that the train was late and deceased started home. In walking between his home and the station it had been his custom to travel upon the railroad track for a distance of about three fourths of a mile, at which point a footpath diverged from the road to the northwest. On this occasion he adopted the usual route upon the railroad track.
The train reached the station at 3 o'clock and after making a short stop proceeded northward following deceased. The bell on the engine was rung by the machinery which propelled the train, and was therefore rung continually while the train was in motion. At a distance of about one eighth of a mile north of the road crossing mentioned the train struck and killed plaintiff's husband. The circumstances attending the accident and the conduct of the engineer and of deceased as disclosed by the evidence will be given more in detail in the opinion.
During the progress of the trial evidence was admitted, over the objection of defendant, tending to prove a common practice of persons living in the neighborhood of the home of deceased to use the track of the railway as a path in going to and from the station. At the close of all the evidence defendant asked an instruction to the effect that upon the pleadings and evidence the verdict should be for defendant. This was refused by the court.
I. That deceased had negligently placed himself in a position of danger is not controverted by plaintiff. Ordinarily such contributory negligence would bar a recovery. But there is a well recognized exception to the rule. The employees of a railroad corporation, in charge of a train, owe, even to a trespasser, the duty of care to avoid injuring him. Fiedler ...
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