Torrance v. Pryor

• Decision Date: 01 March 1919
• Docket Number: No. 19401.,19401.
• Citation: Torrance v. Pryor, 210 S.W. 430 (Mo. 1919)
• Parties: TORRANCE v. PRYOR et al.
• Court: Missouri Supreme Court

210 S.W. 430

TORRANCE v. PRYOR et al.

No. 19401.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

Motion for Rehearing and Motion to Transfer to Court in Banc Denied March 28, 1919.

Appeal from Circuit Court, Adair County; Charles D. Stewart, Judge.

Action by Mamie Torrance against Edward B. Pryor and another, receivers of the Wabash Railroad Company. Verdict and judgment for plaintiff, and defendants appeal. Affirmed.

J. L. Minnis and N. S. Brown, both of St. Louis, and Higbie &. Mills, of. Lancaster,"for appellants.

Weatherby & Frank and Chas. E. Murrell, all of Kirksville, for respondent.

GRAVES, J.

Action for personal injury, grounded upon negligence. By the petition it is alleged, and the proof so shows, that defendant's line of railroad runs through the city of Kirksville in a northeasterly and southwesterly direction. The defendant, between Jefferson street on the north and Scott street on the south, not only maintained its main line track, but also several side tracks. These three streets are mentioned in the evidence, e. Jefferson street, Pierce street, and Scott street. These we have named in order beginning at the north. These streets cross the main line track and other side tracks. practically at right angles, as they run east and west. The main switch stand at the south end of the yard is some distance south of Scott street. Plaintiff at the time of her injury was walking north on main line of defendant's track, and was struck by some disconnected cars that were "shunted" in on this track. She was within the crossing of Scott street, but toward the east side of such street, and beyond the main traveled way of such street. There was abundant evidence to show a long-continued use of defendant's track at this point, by persons in that portion of the city. In other words, plaintiff, when injured, was at a place and traveling a route which for years had been continuously used by the public in going north from points south of the place of accident. The public user is clearly shown. The charge in the petition is:

"The defendant's main track passes through said city of Kirksville in a northeasterly and southwesterly direction. That defendant has for many years prior hereto maintained and operated three switch tracks immediately west of and running parallel with defendant's main track, beginning at a point south of the Scott street crossing above referred to and extending northeasterly to a point at and near the intersection of the main line of defendant's railroad with the railroad of the Quincy, Omaha & Kansas City Railroad Company, north of defendant's said station.

"Plaintiff further states: That for many months and years prior to the injury hereinafter alleged the right of way, main track, and switch tracks of the defendant aforesaid has been constantly used by the public as a footpath and passway. That numbers of people live in that portion of Kirksville, in the vicinity of Scott street crossing, many people living south thereof, and that great numbers of people living in said portion of said city used the main track and switch tracks of defendants and its right of way in going from their homes to the business portion of said city and returning. That for months and years prior hereto there was hardly an hour in the day but what defendant's main track, switch tracks and right of way, at all the points aforesaid and far south of said Scott street crossing, was being used by the people of that section of the city as a footpath and passway to and from their homes, all this with the knowledge and acquiescence of the defendant.

"That at all times herein mentioned, and for a long time prior thereto, defendant maintained a switch stand at a point about 100 yards south of said Scott street crossing; at which point one of defendant's switch tracks join the main track.

"Plaintiff further states that it became and was the duty of the defendant, its agents and servants, in charge of and operating locomotives and trains of cars over and along its said tracks in said city, and over and along its said tracks and crossing above referred to, to keep a sharp and constant lookout for persons on or dangerously near the said tracks, and for persons crossing or about to cross said tracks at the street crossings, and for persons who might be on said tracks using same as a footpath, and to at all times keep the movement of its locomotives, car, or cars under control, and in operating said locomotives or car or cars over and along said tracks at the points aforesaid on approaching said street crossings to warn all persons who might be about to enter upon or near said tracks fit said crossings of the near and dangerous approach of said locomotive, car, or cars, by an adequate signal, and to so operate said locomotive, car, or ears so as to avoid injuring persons on said street crossings or persons using said tracks as a footpath, and to at all times operate said locomotive and cars on said tracks in a careful and prudent manner so as not to injure any person who might be on said tracks at the points aforesaid or about to enter thereon, and to discover persons on said tracks in a position of peril, and to stop said locomotive, car, or cars, if necessary in order to avoid injuring such person and to avoid making what is known as a flying switch, or kick or shunt cars over street crossings and at points where the public uses said tracks as a footpath, or to in any manner operate said car detached from the engine at said points.

"Plaintiff further states that on the 27th day of August, 1915, she was on the main track of the defendant, on Scott street crossing aforesaid, intending to pass from that point north along the main track of the defendant to the home of a neighbor, who lived east of said main track and about 100 yards north of said Scott street crossing, and, while so on said crossing as aforesaid, the defendant, by its agents and servants in charge of and operating a locomotive with a train of cars thereto attached, carelessly and negligently so managed and operated said train of cars that, without warning to plaintiff of their intention so to do, they detached some four or five cars from said locomotive and carelessly and negligently propelled same with great speed on said main track behind plaintiff and toward her while the remainder of said train with the locomotive thereto attached was driven on the switch track connecting the main track at the switch stand south of said Scott street crossing as aforesaid, and negligently and carelessly allowed and permitted said detached cars as aforesaid, without signal and without warning to plaintiff, said agents and servants in charge of said locomotive and cars as aforesaid, knowing that plaintiff was unaware of their intention so to propel said cars on the main track behind her and was unaware of her dangerous and perilous position, to run against and over plaintiff when said agents and servants aforesaid knew of the presence of plaintiff on said crossing and main track, or could have known thereof by the exercise of ordinary care on their part; that said agents and servants as aforesaid carelessly and negligently detached said cars from said locomotive and propelled same on said main track as aforesaid and on and over said Scott street crossing and along and over the main track of defendant at a point where they knew same was being constantly used by the public as a footpath, thereby losing the control of the movement of said cars, and by reason of the negligent acts herein alleged plaintiff while on, said main track at the point aforesaid was run against and over by said detached cars."

Damages were asked in the sum of $25,000. Answer was: (1) General denial; and (2) plea of contributory negligence. The record shows no reply, but cause was tried as if one in the nature of a general denial had been filed. Verdict and judgment for plaintiff in sum of $10,000, and defendant has appealed.

I. It is urged that plaintiff was a trespasser. This is answered by the fact that at the time of the injury she...