Hyde v. Missouri Pacific Railway Co.

Barclay, J. The circumstances of plaintiff’s injury are fully shown in the statement of facts introducing the-report of this case. The accident occurred in the “yards” of defendant at Sedalia. It seems that many people were in the habit of walking- along the tracks there, but the acquiescence essential to give such use the character of a license did not appear. It was plainly wanting. Defendant continuously objected to the practice, had notices posted forbidding it, and, for a time, had a special watchman to warn people away. On such a showing, there is no just foundation for an inference that defendant consented to the use fre [278] quently made of its tracks by individuals, despite its protests. So the plaintiff cannot be regarded as other than a trespasser- on defendant’s right of way, and especially in view of positive legislation on the subject, enacting that, “if any person not connected with or employed upon the railroad shall walk upon the track or tracks thereof, except where the same shall be laid across or along a publicly traveled road or street, or at any crossing, as hereinbefore provided, and shall receive harm on account thereof, such person shall be denned to have committed a trespass in so walking upon said track in any action brought by him on account of such harm,” etc. Sess. Acts, 1885, p. 89, same as R. S. 1889, sec. 2611. The declaration in the constitution that railways in this state are “public highways” (Const. 1875, art. 12, sec. 14), in the connection in which it appears, obviously was not intended to throw them open as thoroughfares for pedestrians. Its object was to lay a foundation for certain kinds of legislative regulation of railways, but not to change the nature of the use of railroad property, .or to divert it from the general purposes for which it was designed. This case, however, does not require us to essay any exact definition of that constitutional language further than to hold that it did not confer on plaintiff any easement or right of foot passage along defendant’s track at the time and place of his injury. So far as this record discloses, no ordinance or other regulation for the giving of warning of movements of the train in question existed. The duty of ■ defendant in the premises depends on the' principles of general law only. Even if it be conceded, for argument’s sake, that defendant was bound to anticipate the presence of pedestrians at that point, by reason of their practice of [279] using the track, the most that could lawfully be deduced from that premise is that defendant should use ordinary care to avoid injuring them. That care is to be measured with a full view of all the surroundings. The prudence which should characterize a person of ordinary foresight and caution, in like circumstances, forms the standard to be applied. There is nothing before us from which it might be inferred that defendant’s employes on the cars saw plaintiff’s peril before the catastrophe. The train was moving very slowly, as is shown by the fact that it was stopped within one car’s length after plaintiff was hit. Defendant, of course, had the right of way, and was not bound to anticipate that persons trespassing on the track would not step aside before a coming train. Nor was it negligence to run defendant’s train as described, through its yards, without other lights than the hand-lanterns of the switchmen and the headlight on the locomotive, in the position already indicated. The car that struck plaintiff was a box car. An employe upon it would be at least ten feet above the level of the rails. The night was rainy, and so dark that a man could not be seen further off than fourteen feet. Can it be fairly said that such a state of facts gives reasonable support to the charge of any want of ordinary care on defendant’s parti Ve think not. It is useless to prolong the discussion or assign further reasons for a conclusion so manifestly clear. Defendant does not appear to have violated any duty it owed plaintiff or the public; and, however greatly his misfortune is to be regretted, there is nothing about its occurrence to justify a court of law or triers of fact in imposing the burden of its consequences elsewhere than upon him who took the risk thereof when he proceeded to use the track as a pathway under the conditions [280] described'. Where the evidence furnishes no substantial support to plaintiff’s allegation of defendant’s negligence, there remains nothing to try, and it is then highly proper to instruct the jury to find for the defendant. The trial court correctly, held that the facts narrated gave plaintiff no right of action. Its judgment is affirmed. Chief Justice Sherwood and Black and Brace, JJ., concur.