Woods v. Wabash R. Co.

• Citation: 86 S.W. 1082,188 Mo. 229
• Parties: WOODS v. WABASH R. CO.
• Decision Date: 16 March 1905
• Court: United States State Supreme Court of Missouri

86 S.W. 1082

188 Mo. 229

WOODS v. WABASH R. CO.

Supreme Court of Missouri.

March 16, 1905.

RAILROADS — PERSONS ON TRACK — INJURIES— LAST CLEAR CHANCE—EVIDENCE —INSTRUCTIONS.

1. In an action against a railroad company for injuries to a child while walking along a track and over a cattle guard, in which she had gotten her foot caught, evidence held to sustain a finding that defendant, by the exercise of ordinary care after discovering plaintiff's perilous position, could have avoided the injury.

2. Where, in an action for injuries to plaintiff while walking on defendant's railroad track, her negligence was conceded, and she asked a recovery on the ground that defendant's servant had the last clear chance to avert the injury, which they could have done with the means at hand by the use of ordinary care, and the instructions given for plaintiff authorized a recovery by her only on satisfactory proof of such facts, while instructions were given for defendant that the verdict should be for it unless such case was proven, and if, instead of the conditions asserted by plaintiff, the jury found that she was walking or running on the track when the train came in sight, and that the engineer gave the alarm whistle, which plaintiff disregarded, and, instead of stepping from the track, she continued to run in front of the coming engine, and attempted to cross a cattle guard, in which her foot was caught, when the train was too close to be stopped in time, although the engineer did his best to do so, then plaintiff could not recover, such instructions covered the whole case; and it was not error for the court to refuse other requested instructions which were either repetitions inappropriate, or erroneous.

3. Where plaintiff, who was injured while walking on defendant's railroad track, conceded her contributory negligence, and only claimed the right to recover on the theory that defendant's engineer, by the exercise of ordinary care, might have prevented the accident after discovering plaintiff's peril, whether plaintiff was entitled to use the track as a footpath, whether she was as responsible as an older person, and whether she was negligent for not listening for the approach of a train, or in any other respect, were immaterial.

4. In an action for injuries to plaintiff by being struck by defendant's engine while she was caught in a cattle guard, a requested instruction substituting as the standard of care required of defendant's engineer that which, in the best judgment of such engineer, should have been done in the emergency, for that which a man of reasonable skill and experience and of ordinary care and prudence in his place would have done, was erroneous.

5. Where plaintiff claimed that her injuries by being struck by defendant's engine while caught in a cattle guard could have been prevented by the exercise of ordinary care on the part of defendant's servants after discovering plaintiff's peril, a requested instruction calling the jury's attention to the fact that there was no evidence of any defect in the machinery, as if plaintiff had failed on that point, was properly refused as not within the issues.

6. Where defendant's engineer was running a train at the rate of 60 feet or more a second when he saw plaintiff fall on a cattle guard, but made no effort to stop the train until he had come so near that it was hardly possible to prevent striking plaintiff and her sister, and, if he had stopped at least 16 feet short of where he did stop, plaintiff would have been saved, a requested instruction that there was no evidence that the engineer failed to make use of any means in his power to stop the engine after discovering plaintiff's peril was properly refused.

Burgess and Fox, JJ., dissenting in part.

In Banc. Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by Mary Woods against the Wabash Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Geo. S. Grover, for appellant. Norton, A very & Young and Barnett & Hostetter, for respondent.

VALLIANT, J.

The plaintiff, a girl between 15 and 16 years old, in company with her twin sister, was on her way to school, walking along the defendant's railroad track, when her foot got fastened in the slats or bars of a cattle guard; and before she could extricate it a train of defendant, consisting of a locomotive, tender, and caboose, came along and ran over her, inflicting very distressing injuries. The theory of the plaintiff's case is that, notwithstanding the fact that it was the plaintiff's own act that put her in the position of danger, yet the servants of the defendant in charge of the train saw her in that position in time to have avoided the injury if they had exercised ordinary care, but failed to do so. The vital question in the case is, was there substantial evidence to sustain that theory?

The undisputed facts are as follows: The father of the plaintiff lived on a farm 2½ miles west of Wentzville. His dwelling house was about 35 yards south of defendant's railroad track. The fence in front of his house, though about 18 feet south of the line of defendant's right of way, was adopted by defendant by joining its right of way fence to it. The gate from the front yard opened on the right of way. The railroad ran east and west in front of the house. The schoolhouse to which the children were going was south of the railroad, a half mile west of their father's house. There was a private road leading north from the Woods house across the railroad to the county road, which at that point was distant 356 feet from the railroad. The county road ran thence west, bearing south, 939 feet; thence southwest 290 feet to the north line of the railroad right of way; thence along the right of way 1,460 feet to another county road, running north and south, and crossing the railroad a half mile west of the Woods house. The schoolhouse fronted this county road. Where this road crosses the railroad there is a cattle guard on each side. The children could have reached the schoolhouse by going around by way of the county roads, but there was no road open to them from their father's house to the schoolhouse on the south side of the railroad. Their usual course to school, and that of other children, was, as they went on the morning in question, along the railroad track west to the county road; thence south about 250 feet to the schoolhouse. The track from the Woods house to the cattle guard is slightly up grade, and, going west, it curves slightly toward the north. About halfway between the private road in front of the Woods house and the cattle guard is a whistling post. This is 1,320 feet from the cattle guard. One standing at the whistling post can see an object on the cattle guard. These girls were clad in red frocks and white sunbonnets. The engineer, defendant's witness, testified that when the whistling post came in view he sounded the whistle, and as he passed the whistling post he saw the girls on the track; he was at his post, on the right side of the cab, looking up the track, and kept his eyes on the girls until the accident occurred. The point of essential difference, however, between his testimony and that of the plaintiff, is that he said that when he came in sight of the girls they had not yet reached the cattle guard, but were walking or running on the track towards it, whereas the plaintiff's testimony, as is contended, tends to show that her foot had already been caught in the cattle guard; she had already fallen, and was in that condition when the engine came in sight and when the engineer first saw her. The plaintiff's testimony on that point is as follows: The father of plaintiff testified that he was in the county road, north of his house, talking with his son and the witness Nat Walker, when he heard the whistle of the train in the direction of Wentzville. He then thought of his children, looked up the road, and saw them, and hallooed to them, but they did not seem to hear. They were then about halfway between the private crossing and the whistling post. He talked for a while with those young men, and then walked to his granary, some 200 yards distant. When he got to the gate he again looked towards his children, and they were then at the cattle guard, walking west. The train was then at the 46 milepost, about a mile east of his house. He could see the steam from the locomotive. The 47 milepost was opposite the gate at his woodyard, where he was standing. Seeing the children were, as he thought, out of danger, he went on to the granary, 130 feet from the gate. In the granary he hung up some sacks, and then came out, and walked to his house, about 30 yards, and as he was going the train passed his house.

Nat Walker testified to the following effect: On the morning of the accident he was driving a wagon loaded with grain to Wentzville. He met Mr. Woods in the public road north of his house. He stopped and talked with him some time. Did not know how long. Saw the girls walking up the track some distance. Could not say how far. After parting with Mr. Woods, witness drove on down towards Wentzville at a steady gait—a walk. "Walked my team down there half a mile, and met the train there."

Charles Oney, a boy 16 years old, was on his way to the same school, but coming towards the cattle guard from the opposite direction. He was walking east on the track, and saw the girls coming west. Saw Mary when she got her foot fastened and fell, and he ran to her assistance, but the train was on her before he got to her. He located the point from which he saw her fall by reference to a telephone pole, and stated that, to be sure of the distance, he went back afterwards and counted the rails. It was sixty rails, and after running towards her he was the distance of the length of thirty-two rails when the engine struck her. He testified that when she fell there was no train in sight, but that he could hear it rumbling which h...