Teitsort v. Illinois Central Railroad Co.

• Decision Date: 29 March 1929
• Docket Number: No. 27660.,27660.
• Citation: 15 S.W.2d 779
• Parties: EDWARD TEITSORT, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY.
• Court: Missouri Supreme Court

15 S.W.2d 779

EDWARD TEITSORT, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY.

No. 27660.

Supreme Court of Missouri, Division No. 1.

March 29, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

AFFIRMED.

Jesse T. Friday and Robert C. Powell for appellant.

(1) If a foreign law is the foundation of a cause of action or defense thereto, it must be both pleaded and proven as a fact. Rashall v. Ry. Co., 155 S.W. 426; First Nat. Bank v. Kirby, 175 S.W. 926; Ankrum v. Bank, 244 S.W. 951; Shelton v. Met. St. Ry. Co., 151 S.W. 493; Lee v. Railroad, 195 Mo. 415; Biggie v. Railroad, 159 Mo. App. 350. (2) In considering defendant's demurrer to the evidence at the close of the entire case, plaintiff must be given benefit of all testimony in his behalf, any favorable testimony by defendant's witnesses and reasonable inferences of fact on all proof. Curtois v. Am. Car Co., 282 S.W. 484; Wright v. Wells, 284 S.W. 848; Wair v. Am. Car Co., 285 S.W. 155; Gehbauer v. Bakery Co., 285 S.W. 170; Walker v. Clay Mfg. Co., 291 S.W. 180. (3). Where the railroad had established and maintained a crossing which was in general use, that it was termed a "farm crossing" as distinguished from a highway crossing was immaterial as to the care required of the railroad engineer to be on lookout for persons using it. Salisbury v. Railroad, 268 S.W. 896; Zini v. Term. Railroad Assn., 250 S.W. 47; Dalton v. Ry. Co., 276 Mo. 677; Beard v. Railroad, 272 Mo. 154; Logan v. Railroad, 300 Mo. 611; Walton v. Ry. Co., 67 Mo. 57; Easley v. Mo. Pac. Ry. Co., 113 Mo. 236.

Watts & Gentry and Arnot L. Sheppard for respondent; V.W. Foster of counsel.

The trial court properly sustained respondent's demurrer at the close of all of the evidence. (1) There is not sufficient evidence in the record to prove that at the time and place appellant was injured respondent owed him any duty except to refrain from wantonly or willfully injuring him. (a) This question must be determined by the law of Illinois because the casualty occurred there. Under the decisions of Illinois pleaded in respondent's answer appellant was a trespasser or licensee, to neither of whom respondent owed any duty except to avoid wantonly or willfully injuring him. Railroad v. Godfrey. 71 Ill. 500; Railroad v. Hetherington, 83 Ill. 510; Blanchard v. Railway, 126 Ill. 416; Railroad v. Eicher, 202 Ill. 556: Thompson v. Ry. Co., 226 Ill. 542; Cunningham v. Ry. Co., 260 Ill. 589; Ingram v. Jackson, 206 Ill. App. 466; Ry. Co. v. Parsons, 42 Ill. App. 92. (b) Even under the law as declared by the courts of this State, the result would be the same. Frye v. Railroad, 200 Mo. 377; Ayers v. Railroad, 190 Mo. 229; Trigg v. Water, L. & P. Co., 215 Mo. 521; Hunt v. Ry. Co., 262 Mo. 271; Wells v. Lusk, 188 Mo. App. 63. This is especially true in view of the entire absence of evidence to show user in the nighttime. Frye v. Railroad, 200 Mo. 377. (c) There is neither pleading nor proof of wantonness or willfulness. There is no evidence tending to show respondent's enginemen could have seen appellant's body lying on the track at a time when it was possible to avert injury to him; nor was there any duty upon them to do more than refrain from wantonly or willfully injuring him. Under the circumstances shown, the humanitarian doctrine was not applicable under the laws of Illinois. See Illinois authorities supra. (2) The same result follows if the laws of Missouri are applied. Frye v. Railroad, 200 Mo. 377. Trigg v. Water, L. & P. Co., 215 Mo. 521; Avers v. Railroad, 190 Mo. 228; Wells v. Lusk, 188 Mo. App. 63. (3) There can be no recovery on the theory of user because the petition does not plead a cause of action on that theory, nor does the evidence prove one. Frye v. Railroad, 200 Mo. 377.

RAGLAND. J.

This is a suit for personal injuries. The injuries were suffered by plaintiff on the night of August 27, 1921, at a place where a roadway in Haven Hill Cemetery, in or adjacent to the city of Olney, in the State of Illinois, crossed defendant's railroad. Plaintiff fell upon the crossing at the time one of defendant's trains was approaching, and before he could extricate himself both of his feet were cut off by the passing train. As defendant's liability depends largely, if not wholly, on the character of the crossing, the facts with reference to that will be set forth somewhat at length.

Haven Hill Cemetery belonged to and was under the control and supervision of the city of Olney: it lay between Walnut Street, one of the public thoroughfares of the city, on the east, and a public road on the west; there were no roads or streets adjoining its northern and southern boundaries. It was laid off into small lots and blocks; and there were a number of driveways running parallel with each other through it from east to west, as there were from north to south. The central drive from east to west was known as Spring Street: it was designated on the recorded plat of the cemetery as Spring Avenue: it was not an extention of any street of the city of Olney or of any public road: it was laid out merely as a way to be used in connection with the cemetery. It could be entered, however, from Walnut Street; and it afforded an exit from the cemetery to the public road on the west. But in passing from the cemetery into the road at that point it was necessary to go through a gate which was ordinarily kept locked.

Defendant's railroad ran north and south through the entire length of the west half of the cemetery. Prior to 1916 none of the east-and-west drives of the cemetery on the east side of the railroad was connected with its extension on the west side by a crossing: until that time there had been no burials on the west side. In March of the year just mentioned the Illinois Service Commission, pursuant to an application made by the city of Olney, ordered the construction of a crossing at grade at Spring Avenue. The order, as appears from the record of the commission, was as follows:

"It appearing that the city of Olney has added to its present cemetery grounds, located immediately to the east of the right of way of the Illinois Central Railroad Company and the Cincinnati, Indianapolis and Western Railway Company, a parcel of land lying immediately across the tracks of said respondents;

"And it appearing that it is necessary to connect the two portions of the cemetery by a driveway across the tracks of said respondents at grade;

"And it further appearing that the city of Olney has petitioned for two grade crossings over the right of way of the defendant companies;

"And it further appearing to the commission that the defendant railroad companies are willing to waive all rights with reference to compelling the city of Olney to obtain the right to cross said tracks by condemnation or other legal method for the crossing, which is an extension of the private street known as Spring Street, and are willing to maintain said crossing between the tracks of the Illinois Central Railroad Company, and Cincinnati, Indianapolis and Western Railway Company for a distance of twenty inches on the outside of each of said tracks;

"And it further appearing to the commission that the said city of Olney is willing to construct and maintain the approaches upon said rights of way to the tracks of the Illinois Central Railroad Company and Cincinnati, Indianapolis and Western Railway Company to within a distance of twenty inches of said defendants' tracks, that is, to within twenty inches of the Illinois Central Railroad on the east and to within twenty inches of the Cincinnati, Indianapolis and Western Railway on the west;

"And it further appearing to the commission that it has full and complete jurisdiction of the parties and the subject-matter herein and the commission being of the opinion that two grade crossings are unnecessary, but that a private grade crossing, which would be an extension of the private street known as Spring Street, for the width of said street, to-wit, about thirty feet, across said right of way of said railroad companies, is necessary and reasonable to provide access to and from the cemetery grounds of said city of Olney, and that said grade crossings will be reasonably safe;

"It Is Therefore Ordered that a crossing which will be the continuance of a private street known as Spring Street, as shown by the plat filed in this case, for the width of said private street, to-wit, thirty feet, may be constructed at grade across the rights of way and tracks of the Illinois Central Railroad Company and the Cincinnati, Indianapolis and Western Railway Company in the said city of Olney, Illinois; that the said crossing shall be fully planked and level between the rails of each track, with two planks on the outside of each rail of a total width of twenty inches, for a distance of not less than twenty feet, by each of said defendants upon its own right of way, and said defendants shall maintain that part of said street lying between their respective lines of tracks... .

"... It is understood by this commission, the city of Olney and the said defendants that said Spring Street is desired and intended to be a private street for serving said cemeteries only, and the city shall have the right to keep the same closed by gates or otherwise against general public travel.

"This order shall be final and binding upon the parties herein upon the acceptance of the same on or before the 30th day of March A.D. 1916, by the city of Olney and each of said defendants. The acceptance of the city of Olney shall be in the form of a valid and binding ordinance accepting the terms and conditions of this order."

Subsequently the city of Olney by ordinance duly accepted all the provisions and conditions of said order, and thereafter the defendant and the city duly constructed the crossing and approaches in conformity with it.

Plaintiff offered evidence for the purpose of showing use of Spring Street by the...