Tanner v. Missouri Pac. Ry. Co.

• Decision Date: 12 March 1901
• Citation: 61 S.W. 826,161 Mo. 497
• Parties: TANNER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

61 S.W. 826

161 Mo. 497

TANNER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

RAILROADS — INJURIES — PERSON NEAR TRACK — CONTRIBUTORY NEGLIGENCE — FAILURE TO LOOK OR LISTEN — RECKLESSNESS AND WANTONNESS.

1. Plaintiff was struck by defendant's train between 1 and 2 o'clock in the morning, while standing in a space seven or eight feet wide between the tracks, at a depot platform. The train which struck plaintiff was due seven minutes later than a standing train beside which plaintiff was waiting for passengers to alight. Both trains had been reported on time, which fact plaintiff knew, but the train first due arrived five minutes late. There was room between the tracks so that a person could stand there unharmed while the trains passed. The headlight on the incoming train was lighted, and plaintiff could have seen the train had he looked, and heard it had he listened. He was thoroughly familiar with the time and manner of the trains' coming, being accustomed to meet them as hotel porter. Held, that the plaintiff was guilty of contributory negligence as a matter of law, so as to preclude a recovery for injuries received.

2. Defendant's servants were not guilty of such willful, reckless, or wanton disregard of human life as to render defendant liable for plaintiff's injuries despite his contributory negligence, because the train entered the depot at a speed slightly in excess of the ordinance, and the engineer could have seen the place on which plaintiff was struck in time to have stopped the train before reaching it.

Appeal from circuit court, Pettis county; George F. Longan, Judge.

Action by S. P. Tanner against the Missouri Pacific Railway Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

M. L. Clardy and Wm. S. Shirk, for appellant. J. H. Rodes, Sangree & Lamm, and Barnett & Barnett, for respondent.

BRACE, P. J.

This is an appeal by the defendant from a judgment of the circuit court of Pettis county in favor of the plaintiff for the sum of $7,000 for personal injuries which, it is alleged in the petition, were caused by the negligence of the plaintiff in running its train at a rate of speed in excess of that allowed by city ordinance and without ringing its bell. The answer was a general denial and a plea of contributory negligence. At the close of plaintiff's evidence, the defendant demurred thereto, and at the close of all the evidence renewed its demurrer, and now insists that the trial court committed error in not sustaining the demurrer. This contention makes it necessary to determine the undisputed facts in the case, and, if upon them it is well grounded, the necessity of considering the other errors assigned is obviated.

The accident occurred on the 2d day of March, 1897, between 1 and 2 o'clock a. m., on the grounds of the defendant in front of its depot in the city of Sedalia. The depot fronts south, with a wooden platform extending south to the tracks. Along and in front of the platform, and on a level with it, are located five tracks, running east and west, numbered 1, 2, 3, 4, 5, from the platform, which extends across and between two or three of the tracks. South of the tracks, and in front of the depot, Osage street, 60 feet wide, running north and south, abuts the depot grounds, and forms one of the principal approaches to the station, to reach which all five of these tracks must be crossed. On the northwest corner of Osage street, fronting the depot grounds and tracks, is the Pacific Lunch Room. On the night in question the plaintiff was in the employ of the City Hotel as night clerk, and discharging the duties of porter for that hotel. Passenger train No. 9, coming from the east on track No. 1, was due at 1:43 a. m. Passenger train No. 10, coming from the west on track No. 2, was due at 1:50 a. m. The track is straight and level, and the headlight of a coming engine on it can be seen a half mile from the place of the accident. The bulletin board showed these trains on time. In fact, No. 9 came in about five minutes late, and No. 10 on time. The plaintiff, in the line of his employment, was in the Pacific Lunch Room, awaiting the arrival of these trains The story of his injury is told by him in his evidence as follows:

In chief: "Q. You may state what you did after you got there, — to the lunch room. How long you stayed there, and how you came to go there, if you did, to meet number nine. A. I went over, and went in the side door to the lunch room, where we generally stopped out of the rain or cold weather, and stop in there occasionally when the train is not in sight or hear it coming. We drop inside there at the restaurant, and stop in there, and talk a few minutes, until the train comes; and we was all standing in there, talking. Some one said the train was coming. Q. Had there been anything said in there about the bulletins of the two trains before that? A. Well, it was reported number nine on time. Q. How about number ten? A. Both on time; that was the report. Q. Marked where, at the bulletin at the depot? A. Yes, sir; I didn't go over myself, but it was reported there among the hack drivers and the porters that number nine and ten was on time. Q. Now go on in your own way. A. And, when number nine was coming in, — we heard it coming in, — we all went out. I say, `All;' several went out. Some went out the side door, and some the back. I went out the back door, and it was raining. You have to go east a little bit to get on the sidewalk, — the back door of the restaurant, — and I went north — Q. Did you go east when you stepped out of the back door of the restaurant? A. Had to go east to get to the corner of the building, — sidewalk. Q. Then how did you go when you got to the corner of the building, — to the sidewalk? A. I went north. Q. Where did you go, — north? A. I went north to the platform between number one and two track, where number nine and ten runs in on. Q. How long were you in there before number nine came in? A. Why, I just got there, and number nine came in. Q. From the east? A. From the east, by me. Q. Go on, from that; and, by the way, when you went across this track that number ten finally came in, state whether you looked or not, — if you looked. A. Yes, sir; I looked west. Q. Did you see anything that indicated a train coming? A. No, sir; nothing but some switch lights up there. They don't give no such light as an engine, you know. * * * Q. Then you crossed on over this track that number ten finally came in on, and got in between tracks number one and two? A. Yes, sir. Q. On which side of number nine were you when number nine came in? A. On the south side. Q. How wide is that platform between tracks one and two? I don't mean when the trains are in, but before they come in. How wide is the space between the rails? Give us your judgment. A. I couldn't say. Q. You never measured it, but give us your judgment about it. A. I judge, seven or eight feet there. Q. When trains come in, I suppose the cars project over the rails to some extent. How wide would the space be when two trains were standing in there, do you think? A. I judge it would be four or five feet. Q. Now, after number nine came in from the east, you say you had your umbrella up? A. Yes, sir. Q. How did you hold your umbrella? A. Up over my head. It was raining. Q. What did you do after number nine came in? A. I was standing there waiting for passengers to get off. Q. Had you moved up east some? A. I may have stepped up a few steps. The smoking car is about middle ways where I was standing. Q. What do you mean by that, — the smoking car? A. That is the first coach. Q. And you mean that you were standing about the middle of the smoking car? A. Yes, sir; when the people were getting off. Q. If we knew where that car stood, we would be able to locate you. Do you know where that car stood? A. I think it was partly across Osage. I was standing on the platform between Osage, or on Osage. Q. You think you were standing on that platform where Osage, if it went through, would have gone right where you were? A. Yes, sir. Q. Well, what happened to you? A. The first thing I knowed, why — Q. How long had you been over there before number ten came in? A. I had been standing there, I guess, a minute and a half or two minutes. Q. What were you doing during that time? A. Standing there looking for passengers to get off. Q. Were you on the track that number ten came in on, do you think? A. No, sir; I don't think I was on the track. Q. What happened to you then? A. The train ran into me. Number ten run into me, and took my leg off. Q. Did you hear it before it struck you? A. No, sir. Q. Did it ring any bell, — the engine on number ten? A. No bell ringing. Q. You never saw it before it struck you? A. No, sir. Q. Which leg was it the train took off? A. Left leg. Q. Do you know whether your leg was taken off after you was thrown down, or was it hurt before you fell down? A. I couldn't say. It was taken off. I didn't know how it was taken off. Q. You were facing what direction when number ten struck you? A. I was facing northeast. Q. Your right side would be towards number ten as it came in, in a measure? A. Yes, sir. Q. you were facing northeast? A. Yes, sir; this direction. Q. And that would bring your right side, in a measure, at any rate, towards the track which was on the south of you? A. Yes, sir. Q. Now it was your left leg that was cut off? A. Yes, sir. Q. Whether you were knocked down, and...