Hamilton v. Kansas City Southern Railway Co.

OPINION.

BOND, J.

(After stating the facts as above).

Constitutional Question. I. The constitutional question raised in the answer touching the validity of the Damage Act as now amended has been decided since this appeal was taken contrary to the position of appellant. [Burge v. Railroad, 244 Mo. 76 .] Hence, we retain jurisdiction of the case, which we would'not do had the above decision been rendered at the time the case was appealed. [Taylor v. Railroad, 207 Mo. l. c. 499.]

Ejecting Drunken Passenger. II. The questions decisive of this appeal are, whether under the testimony of respondent and the legitimate inference arising therefrom, there could be iany recovery on either of the grounds alleged in her petition. The deceased was not ejected from the train for refusing to pay fare or any misbehavior whilst a passenger. He was simply put off at a flag station beyond the point of his intended destination because he had failed to leave when it arrived -there. He was not left *720 at a place where he could not have secured accommodation, as far as the record shows, nor where he was exposed to any dangers which would not beset a man in his condition elsewhere. Indeed, had he been left in a traffic-crowded thoroughfare of a city, he might have been exposed to greater peril than at the quiet flag station where he was landed. He met with no mishap incident to the place where he disembarked. He realized his condition and hired a young person to conduct him across a bridge of the railroad whose track he desired to follow until he reached Lanagan. It is indisputable that he had traveled this track for ,a mile, or more before he was injured. Under these facts, no cause of action arose in favor of his widow for his being left at the flag station, for the reason that it was not a place necessarily dangerous to an intoxicated person, nor was he injured by any peril to which he was exposed-there. The case clearly does not fall within the rule stated in the authorities quoted by learned counsel for respondent, to the effect that “when the carrier discovers that one helpless from intoxication is upon its train without right, it must, in selecting a safe place to put him off, have regard to his actual condition, physical and mental, without any reference to his responsibility for such condition.” [Haug v. Railroad. 42 L. R. A. 669; 4 Elliott on Railroads (2 Ed.), sec. 1637.] The case of Phillips v. Railroad, 211 Mo. 419 , cited for respondent, is not analogous. There the railway had agreed to treat a demented passenger.for his ailment whom it brought from Springfield to St. Louis for that purpose, and with full knowledge of his condition turned him loose upon the streets of that city, unattended and with no notice to his family. He laid down, undressed, on a street car line, and was killed by one of its trains. It was correctly ruled, that the case thus made should have gone to the jury, under the doctrine that the carrier was “liable for such injuries as would reasonably be expected to follow from such negligence *721 and not from mere remote contingencies.” [Ibid., p. 442.] In the case at bar, the plaintiff’s husband was not demented nor drunk to stupefaction. He was able to hire a guide and walk over the railroad bridge and a a mile of its track. He was aware of his condition. He made no effort to stay at the houses of .any of the .residents of the flag station, but at nine o ’clock at night began a journey of two miles to the town of Lanagan,' which he had passed on the train; and, after accomplishing half the distance, in some manner, wholly undisclosed by the evidence, he was killed by a passing train. It is evident he was not injured by any cause existing or located where he got off the train.

Our conclusion is that on the first count of the petition no case was made for the jury.

Trespasser on Track. III. Neither can we perceive any room for the application of the last clear-chance doctrine .relied upon in the second count of the petition. That doctrine is predicable upon the opportunity to avoid injury to another who negligently or otherwise is placed in a position of peril. [Bennett v. Railroad, 242 Mo. 125 ; Klockenbrink v. Railroad, 81 Mo. App. 351 , and cases cited; same case, 172 Mo. l. c. 687.] Hnless there is proof (1) that the party sought to be charged was guilty of negligence, and (2) that such negligence was the proximate cause of the injury, no recovery can be had. In the present case the spot where the body of the deceased was found was on the fenced track of the defendant’s railroad. That the whole track between Elk Springs and Lanagan was occasionally used by pedestrians for their convenience or when the country road was difficult on account of freshets, is shown by the proof; but there is no evidence that the defendant licensed this use of its tracks or had any reason to expect any persons, other than trespassers, to be on the track at the spot where the *722 deceased was lulled. The law does not make it the duty of a railroad to maintain a lookout fox trespassers on its tracks. If such persons are actually seen, the carrier must exercise due care to avoid injuring them; but until they are observed, no duty arises. This record is wholly barren of any evidence tending to show that the deceased was actually visualized by any servant of the defendant prior to the accident, hence there is no proof of negligence on the part of defendant in connection with the injury.

Linking Negligence With Injury. Moreover, the plaintiff is barred from any Recovery in this case for another reason, which is that there is no evidence whatever linking the negligence of defendant (had there been any) with the death of plaintiff’s husband. His body was found on the morning after two trains had traversed the track he was last seen to be walking on. Hence, it is legitimately inferable that he was struck by the train, but it is not legitimately inferable from any fact proven that he was seen or seeable on the track in a position of peril and at a distance sufficient to permit the stoppage of the train. Such an inference is wholly unsupported by any fact proven in the record. The only way it could be deduced would be by basing it on the inference of his being killed by the train; or, in other words, resting a second inference upon a first inference. This is not permissible. [Glick v. Railroad, 57 Mo. App. l. c. 104, and cases cited.]

In order to bring the case within the theory of the last clear-chance doctrine, it is necessary that there should be evidence, positive or inferential, that the deceased was upon the track, lying, standing or sitting for a time prior to the injury sufficiently long for actual or constructive sight by the persons in charge of the train and when it was at a distance sufficiently great to permit it to be stopped before striking him. There is no evidence whatever in the record from which these *723 facts can be legitimately inferred. And as they cannot rest upon a prior inference that he was killed by the train arising upon proof of the position of his-body and the blood stains on the track, there is nothing in the case by which they can be established.

The rule is elementary that inferences cannot be piled upon each other but every inference must be a rational deduction from a fact or facts in proof. And while it is true that there may be a concatenation of any number of inferences in a given case, each of these' must rest on its own facts and no one can be based upon another or a preceding inference.

It follows that even if there had been a duty imposed on defendant to be on the lookout for the presence of the deceased on its enclosed trpok, and had it failed to observe that duty, still there is nothing in the proof adduced on the trial which shows that the injury to plaintiff’s husband was proximately caused by such negligence, for there is no legitimate inference that the deceased was on the track for any definite period of time before he was struck. We conclude that no recovery should! have been allowed on the second count of the petition, and that the trial court erred in overruling the demurrer of the defendant to the evidence. The judgment is reversed.

All concur.