Mathews v. Chicago, Rock Island & Pacific Railway Co. , 63 Mo. App. 569 ( 1895 )

Ellison, J.

Plaintiff is a widow and sued defendant for pecuniary loss, consequent upon the death of her minor son, who was killed by being run over by one of defendant’s engines in charge of its servants. She recovered below.

An examination of the record has satisfied us that no sufficient cause exists to interfere with the judgment rendered. The deceased was walking along defendant’s railroad track, at a time when a train was approaching him from behind, and we may concede was negligent, as well as a trespasser, in so doing. Yet there was evidence tending to show that defendant’s servants in charge of the engine saw him and realized his dangerous situation in time to have either stopped the train, or to have checked its speed sufficiently to have avoided killing deceased. It “seems to us that, conceding to the fullest extent the rule that outside of crowded or populous districts the servants of railway companies are not bound to be on the lookout for trespassers on the tracks, yet the judgment here must stand, since, as before stated, there was evidence tending to support plaintiff’s theory that after the defendant’s servants did observe him on the track and in danger, they negligently failed and neglected to use means at their command which would have averted the death. If such was the fact, then the law fully sustains the plaintiff’s action. Notwithstanding deceased was a trespasser and was negligent and careless in walking along defendant’s track in the manner detailed in evidence, yet defendant’s servants were in duty bound to use all reasonable means at their command, after discovering his dangerous position, to avoid killing him.

The instructions for plaintiff, excepting number 3, were based on the foregoing propositions. Number 3 was to the effect that if after defendant’s servants saw deceased on the track and knew him to be in danger and yet they carelessly and negligently failed to sound the whistle or ring the bell, or do any other thing to warn deceased of the approach of the train, and in consequence of such omission and negligence deceased was run over and killed, the defendant was liable. That was a correct statement of the law as applicable to matters in evidence relating thereto.

The instructions which were refused for defendant were, practically, directions to the jury that there wa's no evidence that defendant’s servants could have stopped the train after discovering deceased’s dangerous position; and that there was no evidence to show that deceased was in such a position of peril as to call for the immediate stopping of the train; that the engineer had a right to presume that deceased would leave the track on a signal of danger from the engine, and if such signals were given, there could be no recovery. In our opinion, these instructions were properly refused. They withdrew from the jury questions about which the evidence, and reasonable inferences therefrom, were in conflict and which were therefore proper for the jury to consider. The instructions given for defendant were, in effect, the opposite hypothesis to those given for plaintiff.

There was an objection to a witness for plaintiff stating whether, if a whistle was sounded, he would have heard it. The objection consisted simply’ of an objection without giving a reason therefor, and, as has been frequently ruled, it can not now be complained that it was overruled.

We.have not gone into a detailed statement of the evidence in the cause, for the reason that it could serve no useful purpose, since, in our opinion, there was enough to support the theory of plaintiff’s case, as made by the petition and instructions. The judgment will be affirmed.

All concur.