Wise v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 16 November 1934
• Docket Number: 32146
• Citation: 76 S.W.2d 118,335 Mo. 1168
• Parties: Raymond Wise, an Infant, by Roland A. Wise, His Next Friend, v. Chicago, Rock Island & Pacific Railway Company, a Corporation, and L. C. Moore, Appellants
• Court: Missouri Supreme Court

76 S.W.2d 118

335 Mo. 1168

Raymond Wise, an Infant, by Roland A. Wise, His Next Friend, v. Chicago, Rock Island & Pacific Railway Company, a Corporation, and L. C. Moore, Appellants

No. 32146

Supreme Court of Missouri

November 16, 1934

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed.

Jones Hocker, Sullivan, Gladney & Reeder and Frank Y Gladney for appellants; Luther Burns of counsel.

(1) There was no evidence whatever that the trainmen saw the plaintiff in a position of peril at any time. It was error to submit this hypothesis to the jury, as was done by Instruction 1 for plaintiff. See Missouri Digest "Trial" Key No. 252. (2) The petition and Instruction 1 wholly fail to state facts sufficient to show a public use of the tracks such as to impose upon the railroad operatives the duty to be on the lookout for pedestrians on the track at the point in question. Fyre v. Ry. Co., 200 Mo. 408; Ahnefeld v. Railroad, 212 Mo. 307; Morgan v. Ry. Co., 159 Mo. 271; Cohner v. Railroad Co., 220 Mo. 303; Feldman v. Railroad, 175 Mo.App. 636; Hines v. Kountis, 272 F. 106; Great Northern Ry. v. Thompson, 199 F. 398. (3) There was no evidence whatever to prove that the alleged use of the tracks was (a) by the public, or (b) for purposes of travel, or that (c) it was definite, or (d) frequent, or (e) habitual, or (f) continuous. Crossno v. Terminal Railroad, 62 S.W.2d 1093; Frye v. Railroad Co., 200 Mo. 377; Hufft v. Ry. Co., 222 Mo. 302; and the authorities cited, supra, under Point 2. (4) The plaintiff's version of precisely how the accident happened is in direct conflict with the facts as established by other witnesses for the plaintiff, and affords no support of the verdict. Kibble v. Railroad, 285 Mo. 618; Sexton v. Street Ry., 245 Mo. 272.

Eagleton, Henwood & Waechter for respondent.

(1) The evidence as whole presented a clear case for the jury under the humanitarian doctrine. Therefore, the demurrer to the evidence was properly overruled and the case properly submitted to the jury. (a) There was substantial evidence from which the jury could reasonably infer that the defendant Moore, the engineer of the train, saw plaintiff approaching and in a position of peril of being struck and injured by the train. Eppstein v. Ry. Co., 197 Mo. 720. (b) There was sufficient evidence of such public use of the railroad tracks at the point in question as to charge the defendant Moore, the engineer of the train, with the duty to look out for pedestrians at that point and to exercise ordinary care for their safety. Cotner v. Railroad Co., 220 Mo. 284; Ahnefeld v. Railroad Co., 212 Mo. 280; Eppstein v. Ry. Co., 197 Mo. 720; Fearons v. Railroad Co., 180 Mo. 208; Morgan v. Railroad Co., 159 Mo. 262; Chamberlain v. Ry. Co., 133 Mo. 587; Lynch v. Ry. Co., 111 Mo. 609; Fielder v. Ry. Co., 107 Mo. 645; Frick v. Ry. Co., 75 Mo. 595. (2) The allegations of the petition were sufficient as to public use of the railroad tracks at the point in question. Ahnefeld v. Railroad Co., 212 Mo. 280; Frye v. Ry. Co., 200 Mo. 377; Lynch v. Ry. Co., 111 Mo. 601. (3) The facts hypothesized in plaintiff's Instruction 1 were sufficient to support the verdict on the issue of public use of the railroad tracks at the point in question. Cotner v. Railroad Co., 220 Mo. 284; Chamberlain v. Ry. Co., 133 Mo. 587.

OPINION

Atwood, P. J.

Raymond Wise, an infant, by Roland A. Wise, his next friend, sued the Chicago, Rock Island & Pacific Railway Company, a corporation, and conductor Hugh Sanders and engineer L. C. Moore for damages on account of injuries alleged to have been inflicted on Raymond Wise by one of the railway company's trains. Defendant's answer was in the nature of a general denial. The action was thereafter dismissed as to defendant Sanders and the trial resulted in a verdict and judgment in favor of plaintiff and against both defendants for $ 15,000 from which judgment both defendants have appealed.

Plaintiff's case was submitted to the jury on the theory that, while he was attempting to walk across the track in front of an approaching train of the defendant railway company, he was struck and injured by the engine of the train, and that defendant Moore, the engineer of the train, saw or by the exercise of ordinary care could have seen plaintiff approaching and in a position of imminent peril of being struck by the train, in time, by the exercise of ordinary care, to have avoided the collision and the resulting injuries to plaintiff by slackening the speed of the train and by sounding an audible warning, as more specifically set forth in instruction numbered 1 given at the request of plaintiff.

Appellants' first assignment of error is that the petition "is fatally defective in that it does not allege a use of the tracks (a) by the public, or (b) for purposes of travel, or (c) that it was definite, or (d) habitual, or (e) frequent, or (f) continuous, or (g) that the railroad company had either actual or imputed knowledge of such a public user."

The allegations in plaintiff's petition pertinent to this assignment are that at the time plaintiff was injured he "was at or near the tracks of defendant, Chicago, Rock Island & Pacific Railway Company, at a point just west of Goodfellow Avenue, an open and public street and highway in the city of St. Louis, Missouri, and plaintiff was crossing at a place where defendant knew or by the exercise of ordinary care would have known was used, at the time and long prior thereto, by persons crossing said tracks," etc. Such pleading of track user is obviously scant and defective, but not fatally so because defendants apparently did not challenge the sufficiency of these averments below and the case was tried as if they were sufficient. Consequently, the objections now urged by appellants do not predicate reversible error. [Frye v. Railway Co., 200 Mo. 377, 408, 98 S.W. 566.]

Counsel for appellants also say that there was no evidence that the trainmen actually saw plaintiff in a position of peril at any time, or that there was a public use of the tracks at the point in question such as to make it the duty of the engineer to be on the lookout for pedestrians on the tracks. Hence, they insist that instruction numbered 1, given at plaintiff's request, submitting both hypotheses was prejudicially erroneous. This instruction was as follows:

"The court instructs the jury that if you find and believe from the evidence that on the occasion in question, plaintiff was crossing the tracks at the place mentioned in evidence, and if you further find that the plaintiff was crossing said tracks at a place which defendants knew was used, at the time, and for a long time prior thereto, if you so find, by persons crossing said tracks, if you so find, and if you further find that the defendant, Chicago, Rock Island & Pacific Railway Company, through defendant, L. C. Moore, was in charge of and operating the train mentioned in evidence, over and along tracks, at the place aforementioned, and that said train did collide with and strike the plaintiff, and that as a direct result thereof, if you so find, the plaintiff was injured thereby, and if you further find, that at and prior to the time of the collision aforesaid, plaintiff was approaching and in a position of imminent peril of being collided with by said defendant's aforesaid train, and that said agent of defendant, Chicago, Rock Island & Pacific Railway Company, saw or by the exercise of ordinary care on the part of said agent could have seen the plaintiff approaching and in the aforesaid position of imminent peril, if you do so find, in time thereafter, by the exercise of ordinary care, and with the means and appliances at hand, and with reasonable safety to defendant's train and its occupants, to have sufficiently slackened the speed of said train, and to have sounded an audible warning signal, and that by so doing said defendant could thus and thereby have avoided the aforesaid collision, if you so find, and that said agent in charge of and operating said train, under the circumstances aforesaid, if you so find, did fail to sufficiently slacken the speed thereof, and to sound an audible warning signal, and that in thus failing, if you so find, said agent of defendant in charge of and operating said train was then and there negligent, and that plaintiff was injured as a direct and proximate result of the aforesaid negligence on the part of defendant (if you find defendant's agent, in charge of and operating said train, was guilty of negligence in failing to sufficiently slacken the speed of said train, and in failing to sound an audible warning signal, if you so find), then your verdict must be in favor of the plaintiff and against the defendants, and this is true even though you may find and believe from the evidence that the plaintiff himself was guilty of negligence in getting himself into the aforesaid position of imminent peril, if any."

At the close of all the evidence counsel for defendants offered a demurrer to the evidence which was refused.

Viewing all the evidence in the light most favorable to plaintiff, as we must in ruling appellants' present objections thereto it appears that on January 9, 1926, the day in question, freight trains of the defendant railway company were operated on two main line tracks extending east and west through the northwest section of the City of St. Louis, Missouri. Eastbound trains used the south track and westbound trains used the north track. Goodfellow Avenue, extending north and south, passed under a viaduct which was about fifteen feet above the surface of Goodfellow Avenue. A short distance west of the viaduct there was a cross-over track between the two main line tracks, and a short distance east of the...