Whalen v. St. Louis, Kansas City & Northern Ry.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: WAGNER
• Citation: 60 Mo. 323
• Decision Date: 31 May 1875
• Parties: EDMUND WHALEN, Respondent, v. THE ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY, Appellant.

60 Mo. 323

EDMUND WHALEN, Respondent,
v.
THE ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Ray Common Pleas.

C. T. Garner, for Appellant.

I. The agents of defendant had no right to presume that there was any one upon the track, especially as it was the usual time for running the train, and at night (Penn. R R. Co. vs. Henderson, 33 Penn., 325; Ch. & R. I. R. R. Co. vs. Still, 19 Ill., 499; Burham vs. St. L. & I. M. R. R. Co., 56 Mo., 338; Robinson vs. Cue, 22 Vt., 213; Redf. Railw., § 193 and authorities cited; 44 Penn. St., 375; Finlayson, Adm'x, vs. The Ch., B. & Q. R. R., 1 Dill., 579); and would be held only if, after becoming aware of plaintiff's danger, they

[60 Mo. 324]

failed to use ordinary care to avoid injuring him. (Ill. Cent. R. R. Co. vs. Godfrey, Am. Law. Reg., May 1875, p. 294.)

II. The plaintiff's fault contributed to and was the cause of the injury, and he had no right to recover. (Stuck vs. The Milw. & Miss. R. R. Co., 9 Wis., 202; Brown vs. Kendall, 6 Cush., 331; Schaabs vs. Woodburn Sarven Wheel Co., 56 Mo., 173; Morrissey vs. Wiggins Ferry Co., 43 Mo., 383, and authorities there cited; Redf. Bail. & Car., § 360, p. 276; Whart. Neg., §§ 300, 341; 12 Metc., 415; 6 Hall, 592.)

III. Plaintiff had no right to walk along the track where there was no crossing or street; and if he was so walking there, he must abide the consequences of the risk and perils thus negligently and carelessly assumed. (Ill. Cent. R. R. Co. vs. Godfrey, Am. Law Reg., May 1875, p. 290; Aurora Rail Co. vs. Ginnis, 13 Ill., 585.)

IV. A passenger on board a railroad car, and a person on foot in the street, or on the track, do not sustain the same relation to the railroad company. (Brand vs. Railroad, 8 Barb., 368; Ang. & Ames Corp., § 388, p. 404, 8 ed.)

V. The court should reverse on the ground of excessive damages. (Sawyer vs. Hann. &. St. Jo. R. R. Co., 37 Mo., 240; Pratte vs. Blakely, 5 Mo., 205; Goetz v. Ambs, 22 Mo., 170; Collins vs. Alb. & Schenec. R. R. Co. 12 Barb., 492; Clapp vs. Huds. River R. R. Co., 19 Barb., 461; 21 Mo., 354.)

Donaldson & Farris, for Respondent, cited in argument, Brown v. Hann. & St. Jo. R. R. Co., 50 Mo., 461.

WAGNER, Judge, delivered the opinion of the court.

This was an action for damages inflicted by a train of cars on defendant's road, in crushing plaintiff's foot, whereby it became necessary to have one of his legs amputated.

The facts in the case are briefly these: The Richmond and Lexington junction, where the accident happened, is in a small town, and the depot is surrounded entirely by railroad tracks, so that in going to the depot it is necessary to cross a track, from whatever side it is approached. On the night

[60 Mo. 325]

when the injury occurred, between eight and nine o'clock the plaintiff, as he alleges, started to go to the depot for the purpose of taking passage on the train, and walked down the track towards the depot. The testimony shows that there were three ways by which the depot was reached. One was by a traveled road, another by what seems to have been a path, and the other down the track. And all these ways were in common use.

The evidence strongly shows, that on the night in question the train that injured plaintiff was backed up, and had on it no head light, and did not ring the bell or sound the whistle to give any warning of its approach. There was evidence introduced to show that plaintiff was intoxicated, and evidence of a contrary character was also given.

The facts were exclusively for the determination of the jury; and, to see whether the court correctly instructed them on the law, it will be as well to insert the declarations.

The first two instructions given for the plaintiff are immaterial. The third was, “that if the jury believe from the evidence, that the defendant, through the negligence or carelessness of its agents, and without negligence on the part of the plaintiff, inflicted upon the plaintiff the injuries mentioned in the petition, they will find for the plaintiff, and assess his damages at such sum as they may think he is entitled to, not to exceed the amount of fifteen thousand dollars, the sum claimed in the petition.”

The fourth instruction declared, that “even if the jury...