Gurley v. Missouri Pacific Railway Co.

Gantt, P. J.

— This is an action for damages for personal injuries. At the time plaintiff was hurt he *223 was attempting to pass between the cars standing on the house or storage track of defendant’s railroad in Pleasant Hill, Missouri. The charge in the petition is that defendant, without warning, violently forced its cars together, just as plaintiff was passing through, and the fleshy portion of his leg, from his thigh down, was bruised and mashed. The answer was a general denial and contributory negligence.

Negligence is a relative term. In every action for negligence of another there must be shown to exist some obligation or duty towards the plaintiff which the defendant has left undischarged or unfulfilled. So in this case the important question arises at once, what duty did defendant owe the plaintiff in protecting and guarding him at this crossing at the time he was hurt, and what were their relative rights and obligations with respect to each other? On the one hand, plaintiff maintains with great earnestness that this was a public crossing, and that defendant owed it to plaintiff to ring the bell upon its engine or sound its whistle before attempting to close said crossing with its cars. On the other hand, defendant urges that this was in no sense a public crossing; that no street or highway of any character crossed its track at this point; that its duty to ring the bell or sound the whistle was statutory, and had never been extended beyond the duty imposed by the statute; that all that could be ■ affirmed under the evidence was that plaintiff was a licensee; that defendant had permitted footmen to pass over its track at this point when not blocked by its cars without protest; that none of the statutory obligations devolved upon it with reference to this crossing; that plaintiff, having lived for many years in Pleasant Hill, knew that this was simply a sidetrack on which defendant loaded and unloaded cars, and in so doing was constantly putting in and taking out cars, and knew tnat it was not the duty or custom of defendant to ring the bell or blow the whistle in moving its cars in and out on this track, and, so knowing, *224 recklessly exposed himself, without the knowledge of defendant. Inasmuch as a proper determination of the other questions in the case depends largely upon the ruling as to the character of this crossing, we proceed to examine this question.

P. D. Mers, a witness for plaintiff, testified he had lived in Pleasant Hill since 1867. In regard to this crossing he says: ‘ ‘ The first sidewalk was put down in 1865. Two planks were put down by Mr. Brown, who then owned the Planters’ House. It was called the ‘Sherman House.’ Two boards were put down to the depot. After they run awhile the railroad company put down a platform for the convenience of the passengers to go from the depot up to the eating-house. It was made out of wood. A plank walk has been maintained there since. * * * I don’t know who paid for the walk, but I know the railroad company’s men did the work. Mrs. Henry gave up the house, I think, in 1875. Then the eating-house was changed to the Atlantic hotel. When the walk got out of repair I fixed it myself. * * * I took it up myself, and put it down myself, or had it done, after the railroad company changed from my eating-house to the Atlantic. Then, for my own convenience, I kept it in repair; that is what 1 did it for. The city would never do it.” Over this walk, so maintained in the interest of the Planters’ House, a hotel immediately in the rear, on the hill back of and behind defendant’s depot, the people passed, when it was not blocked by the cars of defendant, without objection from defendant or its agents. This walk crossed this sidetrack that ran in the rear of defendant’s station-house. This track was used for loading and unloading cars, and the defendant was constantly putting cars in and taking others off of this track.

Plaintiff was a commercial traveler of long experience in traveling on railroads. Was a man fifty-nine years of age.' Had lived in Pleasant Hill since 1871, *225 and was well acquainted with, the use to which this sidetrack was put. Some of the witnesses called this a public crossing, but they all agree that by this term public they mean simply that the citizens of Pleasant Hill were in the habit, many of them, of walking across from the Planters’ House to the depot. None of them pretend there was a street or alley crossing defendant’s track at this point. It was simply a footpath that had been used because it was some thirty steps nearer than the regular street crossings east or west of the depot. On the evening plaintiff was hurt the witnesses say that before' dark there was a space of some three or four feet between the cars at this crossing. But the last witnesses who passed through before plaintiff was hurt say that the cars were so close that a man could barely get through; one, the last who passed, saying that “he had to turn sideways to get through.” Plaintiff’s son, who was with him, says he didn’t think he could get through; that while his father was trying to get through he had his hands on the cars on either side of the crossing, and stood waiting to see if his father got through.

Now, what is meant by a public crossing in the instruction of the court and the brief.of plaintiff? We take it, it can only refer to the public crossings mentioned in section 806, Revised Statutes, 1879; section 2608, Revised Statutes, 1889; because respondent in his brief insists that it was the duty of defendant to. ring the bell or blow the whistle before its cars ajjjjroached said crossing, and because it is well established in this state that it is only necessary to ring or whistle in approaching street or road crossings. Dahlstrom v. Railroad, 96 Mo. 99 ; Stillson v. Railroad, 67 Mo. 671 . The statute requiring the bell rung or whistle blown at public roads or street crossings is a wise one. At these crossings the public have the right to cross at all hours* and it is but simple justice that, when a company *226 crosses these highways with powerful and dangerous engines, it should give warning to those whose duty or inclination may call them over these crossings; but it cannot, we think, be affirmed, with equal reason, that a company, in its own yards, moving its cars up and down on its storage tracks, and not across any public road or street, is required to use the same extraordinary care as in the case of street or road crossings. The licensee who enters upon a railroad track at points other than public roads or streets may by long acquiescence not be a trespasser; but it is going too far to say that, because he is not a trespasser, his rights become paramount to that of the company to use its tracks for the transaction of its business. It is not only the right of the company to use its tracks without hindrance, but its duty to the public requires expedition in the handling and transporting of freight. It would reverse the natural order of things to require the company, in its yards and on storage tracks, to be constantly watching for trespassers and licensees. We think it more consistent with the general law and sound policy to require those who leave the highways, and the protection given by the law at these public street crossings, to go across these railroads at these private crossings, to use the utmost care and diligence in looking after their own welfare. This we'understand to be the law of this state. “ The obligations, rights and duties of railroad companies, and travelers crossing them, are mutual and reciprocal, and no greater care is required of one than the other.” Stillson v. Railroad, 67 Mo. 671 .

When this cause was here on a former appeal, this court held that defendant had a perfect right to stand its cars on this sidetrack, and there was no foundation in this petition for any charge of negligence against defendant for leaving its cars unsecured. To this opinion we still adhere. Gurley v. Railroad, 93 Mo. 445 . Under this evidence, then, we hold this was not a public crossing, within the meaning of section 2608, and the *227 argument of learned counsel based on this assumption is not tenable ; and we hold, moreover, that the instruction, numbered 2, given for plaintiff, permitting the jury to find this was a public crossing, was erroneous. It •was misleading. While the public used this crossing by acquiescence of defendant as a footway, this use did not convert it into a public road or street crossing, within the meaning of the statute, and did not devolve upon the company the duty of maintaining it as a public crossing, and keeping it open and unobstructed, and visiting upon it the statutory penalties for failure so todo.

But, because it was not a public crossing, it does not follow that defendant might negligently and recklessly run its cars over persons who had been in the habit of crossing there. It has been repeatedly held by this court that greater care is to be exercised in running trains within the limits of towns and cities than is required in the country (Frick v. Railroad, 75 Mo. 595 , and cases there cited), and that ‘ ‘ a less degree of vigilance will ordinarily be required between the streets of a town or city khan will be required at the street crossing, or when running longitudinally in a street; but undoubtedly some vigilance is required even between streets, and the degree required will necessarily vary with the attendant circumstances.” Frick v. Railroad, supra. And in that case it was held that, in the case of an adult, the court should qualify its instruction so as to direct the jury that the railroad company would only be liable in case its servants failed to exercise ordinary care to prevent the injury, after they became aware of the danger to which the traveler was exposed.

The relation of the plaintiff and defendant must be kept in view. This was not a public crossing. If it had been so, defendant would have owed plaintiff a positive legal duty; but, being a mere private crossing, and plaintiff being a licensee only, defendant was bound not to recklessly injure plaintiff; and, if it discovered him *228 on the track, then it was its duty to have used every precaution to prevent any injury to him. It is evident that plaintiff did not frame his petition on the theory that this was a public crossing. Had he done so, he would have charged the failure to ring the bell or sound the whistle, but there is no allegation of failure in this respect. If plaintiff seeks to recover on this ground, it is clearly his duty to allege the facts constituting the negligence. Learned counsel seemed to recognize the force of this objection to their petition, and seek to parry the effect of it, by insisting that the answer of defendant amounts to an “express aider,” and cures the petition. The allegation which they claim has this effect is the averment in the answer that plaintiff was well acquainted with the use of this sidetrack, and knew that the defendant in using this track was in the habit of moving its cars in and off this track without giving these statutory signals. We do not think the answer had the effect of curing the petition. It was the averment of a general course of conduct by defendant from which plaintiff was advised of the danger of attempting at any time to cross this track. It is not an admission that no signals were given at the time plaintiff was hurt.

Conceding, then, this was not a public street or road crossing, and that plaintiff was there as a licensee, and not a trespasser, and that defendant owed him the duty to use ordinary care in discovering his presence on the track, we next inquire into plaintiff’s own conductas affecting his right to damages. Plaintiff had been a citizen of the city since 1871. He was a man fifty-nine years old ; a commercial traveler. He knew the premises well. Knew this was a side or storage track, constructed by the defendant to accommodate its freight business. He knew the defendant was constantly putting in and taking cars off of this track, in loading and unloading them. It must be taken, also, that the company was not in the habit of sounding the bells or *229 blowing the whistles whenever they put a car in or took one out of this switch. Plaintiff was apprised that daily and'nightly cars were moved over this branch or switch track, just as the convenience and requirements of defendant’s business demanded. These cars were not moved on any regular schedule time, but might be expected to move at any time without warning or signals. Knowing all this, plaintiff comes to this crossing in the night-time. Now, it may be conceded that if when plaintiff came there the cars were opened as if to invite the public to cross, and it was the custom of the defendant when it had finished its switching to leave an opening between the cars at this crossing for the public, then unquestionably it would be the duty of defendant to give some suitable or reasonable warning before closing the same, for the protection of those who used the crossing, and plaintiff might well have supposed it would be safe to cross if he was not otherwise advise^, that the defendant was about to close this gap or opening, and acting upon this invitation he would be protected ; but is plaintiff in a position to avail himself of such a theory in this case ? Caldwell, one of his witnesses, the last man who passed through this train before plaintiff was hurt, testifies that he met plaintiff between the Planters’ House and the crossing, only a few yards distant, and when he came through the train he had to turn sideways to get through, so close were the cars. “I thought it was a dangerous place, the way those cars were standing there.”

Symington, another of plaintiff’s witnesses, testified in regard to the spaee between the cars : “ I should judge just about room for a person to walk through ; barely room, for a person to walk through.” Hays Gurley, son of the plaintiff, who was with his father, testified: “My father went in between the cars before I did. When my father went through I was right behind him. At the time he was struck I just had my hands on the side of the cars, one hand on each car. I was *230 going through, if he got through all right. I concluded I could not get through. I thought I would get through if he got through all right.” The other witnesses, who went along earlier than this, say the cars stood from three to four feet apart. Under these circumstances, common prudence and care required of plaintiff to look and ascertain whether he could safely pass through that train, and common prudence dictated that he should not recklessly expose himself to the danger of being crushed between those cars. Their very position was a warning to a man of ordinary prudence to stay out. The plaintiff’s conduct savors of reckless rashness. It has long been held that the neglect of an engineer of a train to sound its whistle or ring its bell on nearing a street crossing does not relieve a traveler in the street from taking ordinary precaution for his safety ; that he is bound to use his senses, to listen and look, in order to avoid any possible accident from an approaching "train ; and, if he fails to do so, he takes the risk. Stillson v. Railroad, 67 Mo. 671 . A fortiori ought a traveler, in the night-time, crossing in the yards or on sidetracks, to be careful of his conduct. In Stillson v. Railroad, this court used this language: “The space left between the two trains, even when the father of plaintiff went over to the hotel, twenty inches, would not indicate any invitation, even to foot-passengers. There was no evidence m the case that any person other than the father of . plaintiff and one other person had ventured to cross at that point, and it is clear that, if the father had preceded his child so as to observe the diminished size of the aperture, he would not have advised her to attempt a crossing ’; certainly if he observed the locomotive at the west end, and made an attempt to cross himself, or advised his child to attempt it, its recJdessness would have teen otvious. It does not appear that any officer or servant of the .company was aware that plaintiff was proposing to cross.”.

*231 In the recent case of Hudson v. Railroad, 101 Mo. 13 , this court quoted with approval the language of the Maryland court in State v. Railroad, 31 Md. 366 : “The fact that a train of cars is unlawfully blocking a crossing is no reason why a person should throw himself under the wheels or recklessly expose himself to danger.”

In addition to the warning given by the proximity of the cars, plaintiff’s other witnesses testify to the kicking in of the cars, and to the rattle and noise made by the cars as they came back from the west upon those near the crossing; and this is a matter of such general experience that it is hardly possible for plaintiff not to have heard these cars, had he used the common precaution of stopping before he went in between them. It is true that plaintiff says he stopped, looked and listened, and did not hear or see any cars moving ; but the other witnesses are his also, and they testify to seeing the engine kick the cars on the switch, and to their movement and noise, continuously, up to the very moment plaintiff cried out. This evidence in connection with that of plaintiff’s son that he stood there, and would not venture until he could see the result of his father’s effort to cross, all goes to show that plaintiff acted in a reckless manner, and by his own negligence contributed to his own injury. If the warning was such that Caldwell thought it dangerous, and his own son stood back and would not attempt it, it ought to have been sufficient for plaintiff. By walking thirty steps further east, he could have crossed on a public street, with all the safeguards of the statute thrown around him for his protection.

The second instruction given for the plaintiff was erroneous in this: “Plaintiff ’s petition was not framed on the theory that this was a public crossing, and that he was entitled to have the bell rung or whistle sounded as required by the statute. It is evident it is based upon the facts, as alleged in the petition, that defendant had been in the habit of permitting footmen *232 to go and come across said track, and bad been in tbe babit of separating their cars at this crossing for that purpose, and that at tbe time plaintiff was hurt the cars were so separated.”

If tbe court intended by this instruction to submit to tbe jury this question of tbe company inviting tbe public to cross, it was very unfortunate in its language. We bold that- it should have distinctly said to tbe jury that if the company was in tbe babit of making these openings for tbe public to pass over its track at this point, and when plaintiff came to this crossing these cars were so separated as to induce plaintiff and tbe public to believe tbe company intended they should use it for a crossing, and be did so believe, then plaintiff was justified in acting upon this implied invitation, and defendant owed it to him, under such circumstances, to give him some reasonable or suitable warning of its intention to close this opening, and it would be liable to plaintiff if it neglected so to do. On ' the other band, tbe court should have said to the jury that, if tbe company bad placed its cars in such close proximity that it was dangerous or hazardous for anyone to attempt to pass between them, and it would appear to a reasonably prudent man that the company did not intend tbe public should use said opening as a crossing, then tbe implied invitation to pass was revoked, and plaintiff was not justified in risking himself between the cars at said crossing. This was a question for the jury, under the evidence and proper instructions. But this instruction was also erroneous in leaving it to the jury to say this was a public crossing. This was a misnomer and misleading. It allowed the jury to visit all the penalties for negligence at a public crossing. It is also erroneous in not requiring these various acts of defendant resulting' in plaintiff’s injury to have been negligently done ; and in not requiring plaintiff himself to have been free from negligence directly contributing to his injury.

*233 As this case must be retried, we must remark here that we have not been able to understand how plaintiff could have received the wound he did in the manner he details it. How a man of ordinary stature, walking between two ordinary freight cars, could have the fleshy portion of his leg, from his thigh down, eight or nine inches, mashed by the bumpers or drawheads, is beyond our comprehension. We regard this statement, as appears in this record, so contradictory to general knowledge that no court is bound to accept it. In the case of Hunter v. Railroad, 33 N. E. Rep. 9, in an action against a railroad company for personal injury by a brakeman who had struck his head against something while sitting on a box car, going through a tunnel, the negligence charged was not in giving plaintiff notice of a brick arch in the tunnel, which reduced its height to four feet, seven inches, above the top of the car. The supreme court took judicial notice that a man could not strike his head against an obstruction that distance above where he was sitting, unless he was nine feet high, and that no man was ever known to be nine feet high. To have received the wound the plaintiff did, in simply walking between the cars, if the cars were the ordinary freight cars, plaintiff must have been of remarkable stature. It may be, on another trial, some intelligent explanation can be given how this wound could have been made; there is certainly none in this.

One other point only remains to be noticed. If plaintiff is entitled to recover at all, the verdict herein is excessive. It'is in evidence that no bones were broken ; no muscles destroyed. Plaintiff was able in eight or nine months to resume his work as a commercial traveler. We are asked by counsel to make the proper deduction, and they will remit. We are aware that this court has in cases heretofore indicated how much should be remitted, but, speaking for ourselves, we think that, whenever the verdict does not upon its face appear to be the result of passion or prejudice, it is *234 •wholly within the province of the jury ; but when it does so appear, then it ought to be set aside. We have no scales by which we can determine what portion is just, and the result of reason, based upon the evidence, and what part is poisoned with prejudice and passion. We do not think it within our province to assess the damages. When we set aside any part of the verdict, we destroy its integrity, and we have no right to set ourselves up as triers of facts, and render another and different verdict. We think the only logical course in such cases is to let the verdict stand or set it aside as an entirety. For these reasons we reverse the judgment, and remand the cause.

All the judges of this division concur.