Taylor v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1885
• Citation: 86 Mo. 457
• Parties: TAYLOR, Administrator, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 457

TAYLOR, Administrator,

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

E. A. Andrews for appellant.

(1) The demurrer at the close of plaintiff's case should have been sustained, because the plaintiff on her evidence was not entitled to recover. Maher v. Pacific Railroad, 64 Mo. 269, and authorities there cited; Harlan v. St. L., K. C. & N. Ry. Co., 64 Mo. 480, and authorities there cited; Hallihan v. H. & St. Jo. Ry. Co., 71 Mo. 113, and authorities there cited; Lenix v. Mo. Pac. Ry. Co., 76 Mo. 86, and authorities there cited; Powell v. same, 76 Mo. 80. (2) The demurrer at the close of the whole case should have been sustained, because the plaintiff, on all the evidence, was not entitled to recover. Same authorities. (3) The first instruction given at the request of the plaintiff was erroneous. (4) The third instruction given at the request of the plaintiff was erroneous in this, that it was not supported by necessary allegations in the petition, or by the evidence, and is in conflict with settled law. Same authorities cited.

A. R. Taylor for respondent.

(1) Sullivan was guilty of no negligence in approaching and attempting to cross the track. He used his senses of sight and hearing, without avail, to discover the approach of a train, because there was an obstruction both to his view and his ability to hear. (2) There is no evidence that Sullivan could or did hear the train until notid by McKane of its approach. (3) If the deceased did use his senses of sight and hearing, at the time of approaching and stepping upon the track, and at that time could neither see nor hear the approaching train, and if then, but for the unexpected and unauthorized speed of the train, he could safely passed the track, he was guilty of no negligence. Harlan v. Ry. Co., 64 Mo. 482; Fletcher v. Railroad, 64 Mo. 490; Henze v. Railroad, 71 Mo. 640. (4) The true rule as expounded by the court is, ( a) that a person who attempts to cross a railroad track must, before doing so, if a pedestrian, use his senses of sight and hearing in an ordinarily prudent manner. And the law, in the first instance, presumes in favor of the injured person that he did this thing. ( b) That after such pedestrian has used such lawfully required diligence, in approaching and getting upon the track, he has a right to assume that the railroad company will only operate its train according to the provisions of a law regulating the same, and may proceed to cross the track upon such assumption. (5) While the negligence of the railroad in failing to obey the law as to the operation of its trains will not make it liable where injury is caused by the failure of the injured person to use due care, yet where the injured person has used due care, and his only fault was that he did not anticipate the negligence or wrongful act of the company, it cannot be said that he was guilty of contributory negligence. It is not contributory negligence to fail to anticipate that the servants of the railroad would run the train in violation of the law. 2 Thomp. on Neg., p. 1172, secs. 18, 19, and cases cited. Where a pedestrian listens and looks for an approaching train, and having exercised what care he might, he relies upon an observance by the railroad of the law, and proceeds to cross the track and is injured, he can recover. Sec. 19, supra; Ernst v. Railroad, 35 N. Y. 28-9; Railroad v. Hagan, 47 Pa. 248. As the evidence tended to show that Sullivan did use the diligence required by law, and fell a victim to the fact that he could not and did not anticipate that defendant would violate the law, in running its train at an excessive rate of speed, it follows necessarily that the defendant should be held liable. Henze v. Railroad, supra.

HENRY, C. J.

This action was originally commenced by the intestate, Margaret Sullivan, to recover the statutory penalty of five thousand dollars for the death of her husband, in 1878, alleged to have been caused by the negligence of the defendant in operating a train of its cars on its track near the union depot in the city of St. Louis. Plaintiff had a judgment, which, on appeal to the St. Louis court of appeals, was affirmed pro forma, and defendant has prosecuted an appeal to this court.

The only witness introduced by plaintiff who saw the collision was Louis C. McKane, and his testimony was to the effect that Sullivan was in the employment of the Union Railway and Transit company, as a lamplighter, and that it was his duty to put up lamps in the evening and take them off the targets in the morning in the St. Louis Union Depot yards, which extend from Twelfth to Twenty-first streets, and contain thirteen parallel tracks, running a few feet from each other, and connected by many switches upon and from the targets of which Sullivan put up and took down the lamps, which he kept in a shanty a little west of the Fourteenth street bridge, which crosses these tracks. That deceased was injured between six and seven o'clock, on the morning of the twenty-ninth of October, 1878. That at the time he was injured, witness was between two and three hundred feet east of him, walking between tracks twelve and thirteen. That deceased was coming from the northwest, “walking kind of down the track” over toward his shanty. That witness saw him get on the track and saw the train coming from the west, and threw up his lamp and hallooed to Sullivan to get off the track. Sullivan had just then stepped upon the track and was walking down, and seemed to be going across the track, and when witness hallooed to him, Sullivan looked and threw his body off of the track. The engine was then within fifty or one hundred feet of him. He stepped onto the track, walked a few steps down, and was still going right on. Sullivan was between the witness and the engine which struck him, and witness and Sullivan were facing each other. McKane thought that the train was running fifteen miles an hour, and heard no bell ringing on the engine. He also testified that when Sullivan stepped upon the track he could have seen up the track from which the train was coming over seventy-five or one hundred feet, but that he could not have seen the train until he got upon the track, owing to the obstruction presented by some cars on a switch track near by.

There is no evidence tending to prove that Sullivan, before or after he stepped upon the track, looked or listened for an approaching train. Respondent's counsel insists that he did look, but we have carefully examined the testimony and find nothing in it to justify the contention. “He had his head up, looking along the track, as he stepped upon it,” says the counsel, but the testimony is that he stepped upon the track from behind some cars on a side-track, started in a southeast direction diagonally across, and rather down the track, towards his shanty, and never turned his head toward the train coming from the west until McKane called his attention to it. The attorney for plaintiff asked the witness the following suggestive question: “You say you saw him when he approached the track, and he looked up and down the track?” But the witness had not said it, nor did he ever say it, but studiously avoided testifying to that fact.

At the close of plaintiff's case, the defendant asked the court to direct a verdict for defendant, which the court refused. The case, in its main features, closely resembles that of Harlan v. Ry. Co., 64 Mo. 480, in which Judge Napton, delivering the opinion of the court, said: “A person who goes on a railroad track, or proposes to cross it, must use his eyes and ears to avoid injury. A neglect of regulations in regard to bell ringing may amount to negligence in law, on the part of the railroad employes, but that does not absolve strangers, who propose to cross the track, from ordinary care.” In that case, the deceased stepped upon the track from behind some cars standing on another track, which obstructed his view of the engine which struck him. The bell was not rung, and it was impossible, after deceased got upon the track, to stop the train in time to avoid striking him.

There was no evidence in the case at bar tending to prove that the...