Taylor v. Missouri Pacific Railway Co.

86 Mo. 457

• Court: Supreme Court of Missouri
• Decided: October 15, 1885
• Status: Published

Opinions

Henry, C. J.

— This action was originally commenced by the intestate, Margaret Sullivan, to recover the statutory penalty of five thousand dollars for the death of her husband, in 1878, alleged to have been caused by the negligence of the defendant in operating a train of its cars on its track near the union depot in the city of St. Louis. Plaintiff had a judgment, which, on appeal to the St. Louis court of appeals, was affirmed pro forma, and defendant has prosecuted an appeal to this court.

The only witness introduced by plaintiff who saw the collision was Louis C. McKane, and his testimony was to the effect' that Sullivan was in the employment .of the Union Railway and Transit company, as a lamplighter, and that it was his duty to put up lamps in the .evening and take them off the targets in the morning in the St. Louis Union Depot yards, which extend from Twelfth to Twenty-first streets, and contain thirteen parallel tracks, running a few feet from each other, and connected by many switches upon and from the targets of which Sullivan put up and took down the lamps, which he kept in a shanty a little west of the Fourteenth street bridge, which crosses these tracks. That deceased was injured between six and seven o’ clock, on the morning of the twenty-ninth of October, 1878. That at the time he was injured, witness was between two and three hundred feet east of him, walking between tracks twelve and thirteen. That deceased was coming from the northwest, “walking kind of down the track” over toward his shanty. That witness saw him get on the track and saw the train coming from the west, and threw np his lamp and hallooed to Sullivan to get off the track. Sullivan had just then stepped upon the track and was walking down, and seemed to be going across the track, and when witness hallooed to him, Sullivan looked and threw his body off of the track. The engine was then within fifty or one hundred feet of him. He stepped onto the track, walked a few steps down, and was still going right on. Sullivan was between the witness and the engine which struck him, and witness and Sullivan were facing each other. McKane thought that the train was running fifteen miles an hour, and heard no bell ringing on the engine. He also testified that when Sullivan stepped upon the track he could have seen up the track from which the train was coming over seventy-five or one hundred feet, but that he could not have seen the train until he got upon the track, owing to the obstruction presented by some cars on a switch track near by.

There is no evidence tending to prove that Sullivan, before or after he stepped upon the track, looked or listened for an approaching train. Respondent’s counsel insists that he did look, but we have carefully examined the testimony and find nothing in it to justify the contention. “He had his head up, looking along the track, as he stepped upon it,” says the counsel, but the testimony is that he stepped upon the track from behind some cars on a side-track, started in a southeast direction diagonally across, and rather down the track, towards his shanty, and never turned his head toward the train coming from the west until McKane called his attention to it. The attorney for plaintiff asked the witness the following suggestive question : “You say you saw him when he approached the track, and he looked up and down the track ? ” But the witness had not said it, nor did he ever say it, but studiously avoided testifying to that fact.

At the close of plaintiff ’ s case, the defendant asked the court to direct a verdict for defendant, which the court refused. The case, in its main features, closely resembles that of Harlan v. Ry. Co., 64 Mo. 480, in which Judge Napton, deliveringthe opinion of the court, said : “A person who goes on a railroad track, or proposes to cross it, must use his eyes and ears to avoid injury. A neglect of regulations in regard to bell ringing may amount to negligence in law, on the part of the railroad employes, but that does not absolve strangers, who propose to cross the track, from ordinary care.” In that case, the deceased stepped upon the track from behind some cars standing on another track, which obstructed his view of the engine which struck him. The bell was not rung, and it was impossible, after deceased got upon the track, to stop the train in time to avoid .striking him.

There was no evidence in the case at bar tending to •prove that the deceased ever looked or listened for an approaching train, but, on the contrary, the testimony ■of McKane clearly proves that if he had paused a moment and looked or listened, he would have seen or heard the train. When he got upon the track, the engine which struck him was within fifty or one hundred feet •of him, and had he then stopped and looked, there was nothing to prevent him from seeing it, and if he had listened, without looking, he would have heard it. If he looked he must have seen the train, and determined to take the chances of crossing the track without 'being struck. The negligence of the company in running the train at a speed forbidden by the ordinance of the city, and in not ringing the bell, may be conceded, .although the only evidence that the bell was not rung is that of McKane, who testified that he did not hear it; yet, if Sullivan recklessly or carelessly went upon the track, without looking or listening for an approaching train, when by looking or listening he would have been apprised of its approach, he was guilty of such contributory negligence as precludes a recovery. It is utterly impossible to distinguish this from similar cases in which this and other courts have held that there could be no recovery. Harlan v. Railroad, supra; Maher v. Railroad, 64 Mo. 269; Zimmerman v. Railroad, 71 Mo. 476; Hallihan v. Railroad, 71 Mo. 113; Lenix n. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80; Railroad v. Heileman, 49 Pa. St. 60; Railroad v. Beale, 73 Pa. St. 504; Railroad v. Crawford, 24 Ohio St. 631; Dascomb v. Railroad, 27 Barb. 221; Wilcox v. Railroad, 39 N. Y. 358; Railroad v. Houston, 95 U S. 697. The cars on the side-track which prevented Sullivan from seeing the train which struck him also prevented the men on the train from seeing him, until he came upon the track, and, running at fifteen miles an hour the train could not have been stopped within a shorter distance than five hundred feet, as McKane testified.

Sullivan had for some time been employed in the St. Louis Union Depot yards, and his business required him daily to pass over and among the numerous railroad tracks laid there. He knew the danger to be apprehended from passing trains and engines, and the care demanded of those whose business required them to pass along and over those tracks. By frequent exposure to danger, however, men become indifferent to it, and hazard their lives by taking risks which others less accustomed to the dangers would carefully avoid. Sullivan, no doubt, lost his life by his indifference to perils with which he had become familiar. Upon no other theory can his conduct be explained, and without overruling numerous adjudications of this court, which are in entire harmony with the best considered cases of other American and English courts, we cannot affirm this judgment. It is, therefore, reversed.

All concur except Black, J., who dissents.