St. Louis Southwestern Railway Co. v. Christian ( 1924 )

McCulloch, C. J.

Howard Christian, a small boy about five years of age, was run over by a freight train of appellant’s being operated in the city of Paragould. The boy’s leg- was mashed, off, and he suffered pain. This is an action instituted 'by the guardian of the boy against the railway company to recover damages. There was a verdict against the company, awarding damages to appellee, and an appeal has been prosecuted.

There are many assignments of error, among which is one that, according to the undisputed evidence, there is no liability, and this is the only one which we find it necessary to discuss.

Appellant’s line of railroad runs through the city of Paragould slightly northeast and southwest, crossing the streets and alleys obliquely. Some of the streets and alleys intersected by the railroad are open and some are closed. Vine Street, near which the injury to appellee occurred, runs east and west, and is closed. The plats in evidence show that the street is laid out on both sides of the railroad, but there is no crossing there. Junction Street, the next one on the north of Vine, is open, and also Park Street, two blocks south of Vine, is open. Second Street, which runs north and south on the west side of the railroad crossing, intersects Vine Street at the edge of the railroad right-of-way. East of the railroad right-of-way Vine 'Street is also obstructed by a manufacturing plant, shown on the plat as being nearly across the street adjoining the right-of-way. Just north of the north line of Vine Street there is a trestle spanning a deep ditch. There are two ditches parallel with the main track, north and south and on the west side of the track, which drain into the large ditch spanned by the trestle. Across the ditch north of the trestle there is a wooden stringer, ten by fifteen inches in size, used as a footlog, or walkway. The footlog was placed there by the railroad company, and the first one placed there was replaced by a larger one. At the end of the footlog there is a path which leads across the main line of appellant’s track, and also across the Missouri Pacific track. The footlog and the path which connects have, according to the evidence, been used by the public for many years, without protest or objection. Appellee was run over at a point on the track very near where this pathway crosses the track. He was run over by a freight train containing fifty-eight cars. The train came into the city from the south, and slowed down preparatory to stopping at the water-column for water. The train was 2,500 feet in length, and reached south from the water-column to a point considerably south of the place where appellee was struck at the footpath. In other words, appellee was struck by one of the cars in the train, about the fifteenth from the engine. According to the evidence, the train moved into the city at a slow rate of speed, and the engine stopped at the tank. In coming to a stop the' engineer failed to accurately spot the engine so as to stop it at the water-column, and it was necessary to back up a little.

There is no witness who saw the boy when he was run over by the train, and it is to some extent a matter of speculation as to how it occurred, but it is inferable that the boy was either attempting to crawl under the train and thus pass over the track, or that he was hanging on to the lower rung of the ladder, attempting to ride the train. The only witnesses who saw the boy prior to the injury were the engineer and fireman, who testified that, as they passed up, they saw three boys on the side of the ditch near the footlog, apparently at play, and the boys waved to them, and they responded to the greeting. A witness, who was in the kitchen-car of a work-train standing on an adjoining sidetrack, testified that she heard noises which she found to be the scream of a child, and that, when she looked in that direction, she saw appellee attempting to roll out from under the edge of the train. She testified that she saw two other boys running away from the scene, but that appellee was unable to walk, for the reason that his leg was cut off. This witness testified that the place where she discovered the boy was at the fifteenth car from the engine/

It is undisputed that the train of cars was not cut in two, and that appellee was not struck by the front or rear of the train, but came in contact, as before stated, with one of the cars in the train. It is not contended that the lookout statute requiring signals is involved in the controversy. There is a controversy between counsel as to whether or not the train had come to a full stop before the injury occurred and as to the length of time the train remained standing before the injury occurred. We deem it unnecessary, in view of the conclusion we have reached, to determine those questions. -

Counsel for appellee undertake to sustain the recovery solely on the ground that appellee, when injured, was attempting to cross the track at the pathway crossing referred to above; that, in the operation of the train, there was a violation of the statutory inhibition with reference to blocking crossings; that appellee, being a child of tender years, was incapable of guilt of contributory negligence, and that appellant was therefore liable for the injury. In other words, the contention of counsel for appellee is that the pathway referred to was a kind of crossing referred to in the statute against blocking by railroad trains, that appellee had the right to attempt to cross, and that appellant is liable on account of violation of the statute, which reads as follows:

“If any corporation, company, person or persons owning or operating railroad trains in this State for the purpose of carrying freight, suffers or permits the same to remain standing across any public highway, street, alley, or farm crossing, or, when it becomes necessary to stop such trains across any public highway, street, alley or farm crossing for more than ten minutes, and fails to leave a space of sixty feet across such public highway, street, alley or farm crossing, shall be fined in any sum not less than-five dollars nor more than twenty-five dollars.” Crawford & Moses’ Digest; § 8560.

If the pathway crossing mentioned above falls within the definition of the statute, and was blocked by the train for a longer period than ten minutes, then appellee or any other traveler seeking to cross had the right to adopt some other means of effecting a crossing, and the company would be liable for any injury resulting in the attempt to cross, in the absence of contributory negligence, and appellee, being of tender years, would not be open to the charge of contributory negligence in attempting to cross the track. The rule sustained by authorities seems to be that, when a railroad company occupies a crossing for a time beyond the lawful period, it is under duty to travelers who attempt to cross not to start the train without reasonable warning. Trent v. Norfolk & W. R. Co., 167 Ky. 319; 2 Thompson on Negligence, § 1674; 22 R. C. L. 994. If, however, the pathway in question was not such a crossing as comes within the definition of the statute, then there was no violation of any statutory or other duty, and appellant is not liable.

Our conclusion is that the pathway in question does not come within the statutory inhibition, for it is neither a public highway nor a street or alley within the meaning of the statute. Counsel for appellee contend that it is an alley within the meaning of the statute, and they rely upon the dictionary definition of the word “alley” as “a narrow passage; * * * a narrow passage or way in a city as distinct from a public street.” We are of the opinion that the word ‘ ‘ alley, ’ ’ in the statute is used in the popular sense, and that it was intended to mean a narrow street in a city or town as distinguished from a street upon which buildings face. In fact, some of the dictionary definitions of the word “alley” are sufficient to exclude the application to the pathway in question, and if the dictionary meaning is to be accepted, there are many other definitions therein given which would make them applicable to any kind of private way. The dictionaries define a street broadly as “a way or course” (Webster), and if this definition is accepted as being applicable, it’ would include an alley, and it would therefore be unnecessary to use the word “alley” at all.

The evidence in the case shows that this pathway was along a footlog over the ditch and then a mere walkway over the track. The right to use it was exercised permissively, and no public way was acquired by prescription. It was not therefore such a crossing as was contemplated by the statute which prohibits the blocking of an alley. If the locus in quo was the unopened portion of a street which ran up to the right-of-way on each side, it would not affect the question of the application of the statute. There is no contention that the street had ever been open, and, if an unopened street was there, it would not make this pathway a public alley within the meaning of the statute. But the plat in evidence shows unmistakably that the pathway was not along the unopened street — it was north of the street line.

Something is said in the brief about the question of liability on account of blocking Junction Street on the north and Park Street on the south, but there is no evidence in the case tending to show that the boy was traveling either of those streets or sought to cross at or near either crossing, and there is no ground upon which liability could rest.

Having reached the conclusion that there was no violation of the statutory duty in blocking the pathway in question, it is unnecessary to determine whether or not the evidence is sufficient to show that it was blocked for a longer period than the time prescribed in the statute. There being no other grounds upon which liability could be based, and the testimony being undisputed as to the character of the crossing, nothing would be accomplished by remanding the cause for a new trial, so the judgment is reversed, and judgment will be entered here in favor of appellant. It is so ordered.