Thrower v. Henwood

• Decision Date: 06 July 1943
• Docket Number: 37817
• Parties: Brown Lee Thrower, an infant by his next friend Annie May Lockhart, v. Berryman Henwood, Trustee, St. Louis Southwestern Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

173 S.W.2d 861

351 Mo. 663

Brown Lee Thrower, an infant by his next friend Annie May Lockhart, v. Berryman Henwood, Trustee, St. Louis Southwestern Railway Company, a Corporation, Appellant

No. 37817

Supreme Court of Missouri

July 6, 1943

Rehearing Denied September 7, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Reversed.

Oliver J. Miller and Lashly, Lashly, Miller & Clifford for appellant.

(1) To attempt to go between the cars of a freight train momentarily stopped at a crossing is, even without statutory prohibition such reckless conduct as will prevent a recovery for injuries. This represents the weight of American authority: Key v. Southern Ry. Co., 46 F.2d 993; Lackey v. L. & N. Ry. Co., 261 F. 905; Jones v. Illinois Central Ry. Co., 104 S.W. 258; So. Ry. Co. v. Clark, 105 S.W. 384; Olin v. Minnesota T. Ry. Co., 205 N.W. 440; Nick v. Georgia Ry. Co., 75 S.E. 162; Jones v. Illinois Central, 104 N.W. 258, 13 L. R. A. (N. S.) 1066; C., B. & Q. v. Dewey, 26 Ill. 255; Reno v. Yazoo & M. V. Ry. Co., 70 So. 43; Platt v. S. P. Ry. Co., 64 So. 282; Bird v. Flint & M. Ry. Co., 48 N.W. 691; Passick v. Mo. Pac. Ry. Co., 155 N.W. 1095; Corcoran v. St. L. & Mt. Ry. Co., 16 S.W. 411; Gurley v. Mo. Pac. Ry. Co., 16 S.W. 11; Spain v. St. Louis & S. F. Ry. Co., 190 S.W. 358. (2) This is likewise the general law of Arkansas as expressed in three decisions: Curtis v. St. L.-S. F. Ry. Co., 131 S.W. 947, 96 Ark. 394; St. L.-S. F. Ry. Co. v. McClinton, 9 S.W.2d 1060, 178 Ark. 73; Cato v. St. L. S.W. Ry. Co., 79 S.W.2d 62, 190 Ark. 231. (3) The "Lookout" Statute of Arkansas, Sec. 11170, Pope's Digest of the Statutes of Arkansas, does not change this rule because, in such a case, the proximate cause is not the violation of the statute, but the grossly negligent conduct of the defendant. St. Louis-S. F. Co. v. Robinson, 120 S.W.2d 567, 196 Ark. 964; Mo. Pac. Ry. Co. v. Merrill, 143 S.W.2d 51; Mo. Pac. v. King, 143 S.W.2d 55, 200 Ark. 1066; Act of October of 1939, p. 19, Session Acts. (4) The "Lookout" Statute is not applicable to one getting on a train, but only to one upon the track in front of an approaching train who is oblivious of his peril from the approach of the train. Cases cited under (3); Mo. Pac. Ry. Co. v. Campbell, 143 S.W.2d 9; Chotaw, etc., Ry. Co. v. Doughty, 91 S.W. 768, 71 Ark. 8; Little Rock, etc., Ry. Co. v. McQueeney, 92 S.W. 1120, 78 Ark. 22; Kelly v. DeQueen, etc., 298 S.W. 347, 174 Ark. 1000. (5) The rule of strict construction prevails in Arkansas in connection with the interpretation of this statute. Mo. Pac. v. Jones, 31 S.W.2d 524, 182 Ark. 405; Bain v. Fort Smith Ry. Co., 116 Ark. 125, 172 S.W. 843, L. R. A. 1915 D; Crossett Lbr. Co. v. Cater, 144 S.W.2d 1074.

Max M. Librach and Chelsea O. Inman for respondent.

(1) Plaintiff's negligence in undertaking to pass between the ends of the cars cannot defeat his right to recover. He did not violate the statute intended to prohibit trespassers riding on trains. One of the essential elements of the offense is the intention to obtain a free ride. No such intention appears from the evidence in this case. Dalton v. Ry. Co., 276 Mo. 663, 208 S.W. 828. (2) His act in going on the cars, even though it were a violation of the law, was nothing more than contributory negligence. Neither contributory negligence nor the status of a trespasser constitutes any defense to a violation of the lookout statute under any circumstances. Mo. Pac. R. Co. v. Eubanks, 200 Ark. 483, 139 S.W.2d 413; Mo. Pac. R. Co. v. Nelson, 195 Ark. 883, 115 S.W.2d 872; St. L.-S. F. Ry. Co. v. Sheppard, 194 Ark. 619, 109 S.W.2d 109. (3) The lookout statute makes the failure of trainmen to keep a constant lookout the proximate cause of such injuries as could and would have been averted had the lookout been kept. Blythesville, etc., Ry. Co. v. Gessell, 158 Ark. 569, 250 S.W. 881. (4) The lookout statute was applicable to the case at bar because the duty to keep a lookout is not restricted to the track, but requires an efficient lookout near and alongside the track as well, and requires the trainmen to look out for any danger they have reason to anticipate. Mo. Pac. R. Co. v. Eubanks, 200 Ark. 484, 139 S.W.2d 413; Mo. Pac. R. Co. v. Nelson, 195 Ark. 883, 115 S.W.2d 872; Kelly v. De Queen & E. R. Co., 174 Ark. 1000, 298 S.W. 347; L. R. & H. S.W. R. Co. v. McQueeney, 78 Ark. 22, 92 S.W. 1120; Bush v. Brewer, 136 Ark. 246, 206 S.W. 322; Mo. Pac. R. Co. v. Ward, 195 Ark. 966, 115 S.W.2d 835; Baldwin v. Brimm, 192 Ark. 252, 91 S.W.2d 255. (5) The duty imposed by the statute is not limited to a lookout ahead of a moving train or cars, but exists at all times and places in the operation of trains. St. L.-S. F. Ry. Co. v. Brummett, 143 S.W.2d 555; St. L.-S. F. Ry. Co. v. Sheppard, 194 Ark. 619, 109 S.W.2d 109. (6) Employees operating the train knew that persons frequently climbed through the cars at the crossing in question. At least four of these employees were available to keep a lookout and by so doing would have discovered plaintiff going between the cars in time to have set the brakes and kept the train from moving until he reached a place of safety. The statute is violated if the employees, by keeping a constant lookout, could have discovered the perilous position of the person injured in time, by exercising reasonable care, to have averted the injury. Baldwin v. Clark, 189 Ark. 1140, 76 S.W.2d 967; Kelly v. DeQueen & E. R. Co., 174 Ark. 1000, 298 S.W. 347. (7) The burden of proof was on the railroad company to show that it kept a lookout and it failed to carry this burden. Kelly v. De Queen & E. R. Co., supra. (8) Plaintiff was in peril when he went upon the train which was about to move. Defendant's amended answer admits this and he is now estopped to take a contrary position. Fleming v. Joseph McMahon Contracting Corp., 45 S.W.2d 952; Grott v. Johnson, etc., Shoe Co., 2 S.W.2d 785; Crockett v. K. C. Ry. Co., 243 S.W. 902; Stout v. K. C. Pub. Serv. Co., 17 S.W.2d 363; Fledermann v. Ry. Co., 254 S.W. 717.

OPINION

Ellison, J.

The respondent, a negro youth between 19 and 20 years old, and about 6 feet tall, recovered a judgment for $ 11,000 in the circuit court of the city of St. Louis against the appellant trustee of the St. Louis Southwestern Railway, sometimes called "The Cotton Belt," for personal injuries sustained when one of appellant's freight trains ran over him as it started moving while he was attempting to climb between the cars at a street crossing in Pine Bluff, Arkansas. The action was based on the so-called "Lookout" statute of Arkansas, Sec. 11144, Pope's Digest, 1937, and also pleaded a custom for "members of the public to climb over, between and under" the cars of trains standing at the place where the casualty occurred. Appellant's assignments of error here charge: (1) that the trial court erred in submitting the case to the jury; (2) that the Lookout statute did not apply to the facts in evidence; (3) that respondent's negligence was so gross and wanton as to constitute the intervening sole cause of respondent's injuries and preclude a recovery by him; (4) and that conduct so violative of common prudence could not be sanctioned by custom.

Respondent was on his way to school, going northerly along Mulberry street. The Cotton Belt tracks run east and west and on a curve which is concave southerly, and intersect Mulberry street. Some distance further west they cross the Missouri Pacific tracks. The Cotton Belt freight train was headed west and had stopped briefly for that railroad crossing as the Arkansas law requires. Both sides agree this resulted in the train's blocking the Mulberry street crossing. But how much of its length extended each way from the crossing can only be estimated from the evidence. There were 37 cars in the train, of the average length of 40 feet. The length of the engine and tender were not shown. The engineer testified the distance westward between the Mulberry street crossing and the Missouri Pacific crossing is 22 car lengths, which would be 880 feet. He further said he stopped the train 200 feet east of the latter. This would place the front of the engine 680 feet west of the Mulberry street crossing. Assuming the length of the engine and tender to be 100 feet (2 1/2 car lengths), the remaining 580 feet would have been occupied by freight cars, meaning 14 1/2 cars of the 37 car train had crossed over the Mulberry street crossing and were west of it, and the remaining 22 1/2 cars still were east of it. In other words, a little less than half of the whole train (counting the engine and tender) was west of the crossing and little more than half east of it.

As he neared the Cotton Belt crossing respondent saw the train approaching. When he got there it had stopped, blocking the crossing. He did not know how long it would stay. Two of the train crew estimated the time was less than 1 1/2 minutes. The statutory limit is 10 minutes. A witness for respondent said the usual time is between three and five minutes, depending on the length of the train, meaning it takes that long to clear the crossing. All agreed the stop ordinarily would be brief unless some cross bound Missouri Pacific train interfered, which did not occur in this instance. In other words the delay was not undue.

At any rate, respondent said that while he was there on the south side of the train a man climbed between the cars from the north and passed him. Prompted by this respondent attempted to do the same thing. He was over a half hour late to school and evidently in a hurry. He testified that he pulled himself up the ladder on the side of one of the same two cars, it being a box car, and stepped over on the coupler between it and the next car behind, which...