Smith v. Terminal R. R. Ass'n of St. Louis

• Citation: 85 S.W.2d 425,337 Mo. 95
• Parties: Willie Smith, an Infant, by Ola Silverman, His Next Friend, Appellant, v. Terminal Railroad Association of St. Louis, a Corporation
• Decision Date: 09 July 1935
• Court: United States State Supreme Court of Missouri

85 S.W.2d 425

337 Mo. 95

Willie Smith, an Infant, by Ola Silverman, His Next Friend, Appellant, v. Terminal Railroad Association of St. Louis, a Corporation

Supreme Court of Missouri

July 9, 1935

Motion for Rehearing Overruled July 9, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge; Opinion filed at September Term, 1934. April 17, 1935; motion for rehearing filed; motion overruled at May Term, July 9, 1935.

Affirmed and remanded.

Everett Hullverson and Mason & Flynn for appellant.

(1) It clearly appearing from the evidence on behalf of the plaintiff that he was on a railroad track in the city of Venice, in a vicinity thickly populated and built up (as appears from the pictures offered in evidence), and that there had been for many years a very extensive user of the track at that point by pedestrians and that defendant knew that it could not expect a clear track at that point and plaintiff was walking for a distance of 810 feet with his back to an oncoming train and was struck by a slowly moving locomotive, which came up behind him and struck him without warning when he was in plain view, there was established for the plaintiff under Missouri law a clear case of negligence on the part of the defendant for failure to warn him and of injury directly due to that negligence, regardless of whether plaintiff were a trespasser or not. Ahnfield v. Railroad Co., 212 Mo. 280; Murphy v. Railroad Co., 228 Mo. 56; Rodgers v. Ry. Co., 31 S.W.2d 546; Morgan v. Ry. Co., 159 Mo. 273; Everett v Railroad Co., 214 Mo. 61; Fearons v. Railroad Co., 180 Mo. 221; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 747; Hill v. Rys. Co., 289 Mo. 204; Wise v. Ry. Co., 76 S.W.2d 118. (2) By way of affirmative defense, the defendant pleads that the plaintiff was negligent in going on its track and was a trespasser within the Illinois law, and further alleges that the Illinois law places no duty upon the owner of premises so far as a trespasser is concerned, except to avoid wantonly or willfully injuring him after his presence is known. The pleaded Illinois law set forth by the defendant, as applicable to the situation, is based entirely on the defendant's allegation that plaintiff was a trespasser or at most a bare licensee. The burden was, therefore, on the defendant, in order to make such Illinois law applicable, to prove that the plaintiff was a trespasser or bare licensee. (a) Because defendant affirmatively pleaded that fact. Richardson v. George, 34 Mo. 104; Clay v. Ry. Co., 5 S.W.2d 409; Thompson v. Ry. Co., 69 S.W.2d 936. (b) The track was located in the city of Venice. It was bordered on each side by a street. It was, according to the evidence, much used by pedestrians and by other railroads. If, nevertheless, the ground over which the track was laid was the defendant's private property to which it had exclusive use, that was a matter peculiarly within the defendant's knowledge, and, therefore, the defendant had the burden of proof to show such fact with reference to its own ownership. Pauley v. Business Men's Assur. Co., 217 Mo. 302, 261 S.W. 340; Ward v. Scott County Milling Co., 47 S.W.2d 250; Schneider v. Maney, 242 Mo. 43; Swinhart v. Ry. Co., 207 Mo. 423; Pittsburgh, etc., Ry. Co. v. Callaghan, 157 Ill. 406; C. & A. Railroad Co. v. O'Neil, 172 Ill. 527. (c) Furthermore, the plaintiff was not required to prove the negative; that is, that he was not a trespasser. Swinhart v. Ry. Co., 207 Mo. 423. (3) Under the law of both Illinois and Missouri, where a railroad merely has an easement for its tracks on the public highway and has laid its track in and parallel to the highway, the railroad's right to use the track is concurrent with the rights of the public to use the same space. A person is, therefore, not shown to be a trespasser merely because he is shown to be on the track in a city, which track was used by the railroad. Illinois Terminal v. Mitchell, 214 Ill. 151; East St. Louis & Sub. Ry. v. Reames, 173 Ill. 582; Jaffi v. Ry. Co., 205 Mo. 474. (4) While the court takes judicial notice of the statutes and decisions of Illinois bearing upon any rule of law pleaded, nevertheless, where a defendant pleads facts necessary to invoke an Illinois rule of law, towit, that plaintiff was a trespasser, proof of that fact is an affirmative defense, the burden of which is on the defendant. As no evidence was offered by the defendant that plaintiff was a trespasser, in other words, that the defendant had the exclusive right to the use of the place in question, this court will, therefore, apply the Missouri rule to the situation developed by the evidence. First Natl. Bank v. Kirby, 175 S.W. 926; Conrad v. Fisher, 37 Mo.App. 352.

T. M. Pierce, J. L. Howell and Walter N. Davis for respondent.

(1) The accident occurred in Illinois. Therefore as defendant pleaded and cited Illinois authorities, the case is governed as to such issues by said pleadings and authorities. Woodard v. Bush, 282 Mo. 163, 220 S.W. 839. (2) Whether the facts adduced show a submissible case is always a question for the court, according to Illinois decisions. Morgan v. Railroad Co., 327 Ill. 346, 148 N.E. 724. (3) Plaintiff, injured on the right-of-way of defendant, was a trespasser. The Illinois decisions unequivocally hold that even though pedestrians for years had made use of a railroad right-of-way to travel over it, yet, one using it for his own convenience or pleasure is a trespasser, or at most a mere or bare licensee, and that the only duty of the train employees to such person was not willfully or wantonly to injure him after they had notice of his presence or saw him in a perilous situation. I. C. Railroad Co. v. Godfrey, 71 Ill. 500; I. C. Railroad Co. v. Heatherington, 83 Ill. 510; Blanchard v. Railroad Co., 126 Ill. 416, 18 N.E. 799; I. C. Railroad Co. v. O'Connor, 189 Ill. 559, 59 S.W. 1098; I. C. Railroad Co. v. Eicher, 202 Ill. 556, 67 N.E. 376; Thompson v. Railroad Co., 226 Ill. 542, 80 N.E. 1054; Cunningham v. Railroad Co., 260 Ill. 589, 103 N.E. 594; Morgan v. Railroad Co., 327 Ill. 339, 158 N.E. 724; Neice v. Railroad Co., 254 Ill. 595. (a) The Illinois trespasser doctrine is not founded on contributory negligence. It is predicated on the hypothesis that a railroad does not owe a trespasser, or a licensee, any duty except not wantonly or willfully to injure him, that is to use reasonable care to prevent injuring him after he is seen in a perilous situation. Thompson v. Railroad Co., 226 Ill. 545, 80 N.E. 1054. (b) Even though the tracks where plaintiff was injured belonged to another railroad, yet, as plaintiff was hurt by defendant's train while operating over said tracks, as to defendant plaintiff was a trespasser. Blanchard v. Railroad Co., 126 Ill. 416, 18 N.E. 799; Cunningham v. Railroad Co., 260 Ill. 589, 103 N.E. 594. (c) As plaintiff was a trespasser, he cannot complain of the failure of the train employees to warn him of the train's approach, unless he was actually seen by them in a position of peril. The warning rule was not intended for the protection of trespassers. Williams v. Railroad Co., 135 Ill. 491; I. C. Railroad Co. v. O'Connor, 189 Ill. 559, 59 N.E. 1098; I. C. Railroad Co. v. Eicher, 202 Ill. 556, 67 N.E. 376; Thompson v. Railroad Co., 226 Ill. 542, 80 N.E. 1054; Sary v. Railroad Co., 248 Ill.App. 417, certiorari denied, 251 Ill.App. XLIII; Frye v. Railroad Co., 200 Mo. 407, 98 S.W. 566. (d) One walking along a right-of-way is a trespasser, unless he is walking in a well defined path. Sorenson v. Railroad Co., 212 N.W. 273. (e) Plaintiff, in using said railroad track for his own convenience and pleasure, even though said track belonged to another railroad, was a trespasser. Blanchard v. Railroad Co., 126 Ill. 423, 18 N.E. 799; I. C. Railroad Co. v. O'Connor, 189 Ill. 567, 59 N.E. 1098; Sary v. Railroad Co., 248 Ill.App. 421. (f) A trespasser, or one on a railroad track by sufferance, is in a different classification from employees and invitees. Williams v. Railroad Co., 135 Ill. 491; Rittenhaus v. Railroad Co., 299 Mo. 199, 252 S.W. 945; Railroad Co. v. Conarty, 238 U.S. 249; Mansfield v. Wagner Co., 242 S.W. 403. (4) A submissible case was not made because the evidence does not show that any person ever before was on the track at the place where plaintiff was injured. Hall v. Railroad Co., 219 Mo. 553, 118 S.W. 556; Hufft v. Railroad Co., 222 Mo. 286, 121 S.W. 120; Frye v. Railroad Co., 200 Mo. 377, 98 S.W. 556; Crossno v. Railroad Co., 62 S.W.2d 1092.

OPINION

Gantt, P. J.

Action for personal injuries. Judgment for $ 18,000. Plaintiff appealed from the order granting defendant a new trial.

In substance the petition alleged that plaintiff was injured by defendant's train in Venice, Illinois, while he was gathering coal from defendant's tracks, which pass through a thickly populated district. It further alleged that the Missouri humanitarian doctrine is the same as the willful and wanton doctrine of Illinois; that at and near the place on the tracks where plaintiff was injured many persons, for a considerable period of time, had been using the tracks to walk upon, cross and gather coal, and for other purposes; that plaintiff had been granted permission by an agent of defendant to remove coal from the tracks; that said use of that part of the tracks was known, or, by the exercise of ordinary care could have been known to the agents of defendant in charge of the train; that said agents saw, or, by the exercise of ordinary care could have seen plaintiff in a position of peril in time to have sounded a warning, slackened the speed, or stopped the train, thereby avoiding injury to him, and that as a direct result of the negligent failure of said agents to do so, the plaintiff was injured.

The answer of defendan...