Opinion
August 24, 1933.
1. RAILROADS: Clear Track: Waiver. The right of a railroad company to the exclusive use of its tracks and its yards, therefore the right to expect a clear track may be waived where evidence of user of the track by pedestrians is such that it tends to show knowledge by the company of such user and acquiescence therein.
2. RAILROADS: Clear Track: Use by Employees. In an action by an employee of a railroad company against the company for injuries received by being struck by a train while crossing a track in the company's yard, where the evidence showed that the employees of the defendant and of other companies walked through the yards going to and from their work but did not show that they walked upon or across the tracks, the company was not required to expect employees to be upon the track or to be upon the lookout for them.
In such action, the plaintiff failed to make out a prima facie case on such showing.
3. APPEAL AND ERROR: Former Appeal: Law of the Case. In an action for damages caused to plaintiff, an employee of defendant, on being struck by a train while crossing a track in defendant's yards, where the sufficiency of evidence to make out a case was not challenged on the former appeal, the application of the "law of the case" did not prevent such challenge on the second appeal.
Appeal from Circuit Court of City of St. Louis. — Hon. Albert D. Nortoni, Judge.
REVERSED.
T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.
(1) The opinion of the former appeal is the law of the case on subsequent appeals, unless the pleadings have been amended so as to introduce new issues; or, unless the evidence on the retrial is substantially different; or, unless the opinion on the former appeal was manifestly erroneous because of a mistake as to the law or the evidence; or, because an injustice has been done. Davidson v. Railroad, 301 Mo. 85, 256 S.W. 169; Mangold v. Bacon, 237 Mo. 525, 141 S.W. 650; Monroe v. Railroad, 297 Mo. 654; Bagnell v. Railroad, 242 Mo. 21; Seibert v. Harden, 319 Mo. 1112, 8 S.W.2d 905; Nothstine v. Feldman, 320 Mo. 512, 8 S.W.2d 912 (2) The evidence shows that plaintiff was a trespasser on the railroad track. The record is without evidence that any person, either the public or an employee, other than plaintiff on this one occasion in question, ever before had crossed the railroad track at the place plaintiff said the car collided with him. Plaintiff was injured at a place where defendant had the right to expect a clear track. Therefore, the only duty that defendant owed plaintiff was not willfully or wantonly to injure him after discovering him. The court should have instructed the jury to find for defendant. Hall v. Railroad, 219 Mo. 553, 118 S.W. 56; Hufft v. Railroad, 222 Mo. 286, 121 S.W. 120; Frye v. Railroad, 200 Mo. 377, 98 S.W. 566; Sorenson v. Railroad, 212 N.W. 273; Arkansas Short Line v. Bellars, 2 S.W.2d 683; Pryotely v. Railroad, 28 F.2d 868; Helring v. Railroad, 54 F.2d 493; Murphy v. Murphy, 162 S.E. 901; Railroad Co. v. Godfrey, 71 Ill. 500; Cunningham v. Railroad Co., 260 Ill. 589; Railroad Co. v. O'Connor, 189 Ill. 559; Sary v. Railroad, 248 Ill. App. 417; certiorari denied, 251 Ill. App. XLIII, by Supreme Court of Illinois, (a) The evidence tends to show that employees of defendant traversed the railroad yards in going to and returning from their work, using a beaten path to the north of said lead track, but evidence as to the duration or extent of the user was uncertain and indefinite, and no evidence obtains that any person, other than plaintiff, used the beaten path in the nighttime. Even so, plaintiff was not injured while walking along said beaten path, but he was injured while returning to said beaten pathway, and crossing the switch track, after having left the beaten pathway for his own convenience. He was not hurt at a public crossing, or on a portion of the track habitually used by the public. In fact, there was no evidence of a prior user of that portion of the track where plaintiff was hurt. Hall v. Railroad, 219 Mo. 587, 118 S.W. 56. (b) As no user of the place where plaintiff was hurt was shown, plaintiff was a pure trespasser, and defendant's only duty was to use reasonable care not to injure him after the discovery of his danger or peril. Hufft v. Railroad, 222 Mo. 302, 121 S.W. 120; Hall v. Railroad, 219 Mo. 586, 118 S.W. 56, (c) Even if the user of the beaten path to the north of the track was sufficient to show a prescriptive right, that is an open, known, free, continuous and extensive use by the public, which we doubt, yet there was not a semblance of evidence that the place where plaintiff was hurt was ever before used by anyone. The use must be confined to the limits proved. Frye v. Railroad, 200 Mo. 401, 98 S.W. 566; 52 C.J. 524-543, sec. 2112. (d) As plaintiff was a trespasser, he cannot complain of the absence of a light on the foremost car. The light rule was not intended for the protection of trespassers. Frye v. Railroad, 200 Mo. 407, 98 S.W. 566; Railroad Co. v. O'Connor, 189 Ill. 559; Sary v. Railroad, 248 Ill. App. 417, certiorari denied, 251 Ill. App. XLIII, by Illinois Supreme Court.
Louis E. Miller and John F. Gibbons for respondent.
(1) The opinion of the former appeal is the law of the present case. Since the pleadings have not been amended, no new evidence has been introduced, the evidence on the retrial is substantially the same, if not identical; the opinion on the former appeal properly applied and declared the law and no injustice has been done. Crossno v. Terminal Railroad Assn., 41 S.W.2d 796; State of Kansas ex rel. Winkle Terra Cotta Co. v. United States F. G. Co., 40 S.W.2d 1052; Bradley v. Becker, 11 S.W.2d 10; Davidson v. St. Louis-S.F. Ry. Co., 256 S.W. 169; Seibert v. Harden, 8 S.W.2d 908; North St. L. Gymnastic Soc. v. Hagerman, 232 Mo. 693; Mangold v. Bacon, 237 Mo. 496; Benton v. St. Louis, 248 Mo. 102; McMenamy v. Kampelmann, 217 S.W. 99; Coleman v. Northwestern Mut. Life Ins. Co., 233 S.W. 188; Scott v. Realty Improvement Co., 255 Mo. 102; Armor v. Frey, 253 Mo. 464. (2) Plaintiff was not a trespasser on the railroad track. He was at a point on a switch track between two well-defined pathways in a part of a yard through which employees of the defendant and other railroad companies customarily walked and in a foreign yard where the defendant had no right to expect a clear track into which it was backing a train at night, at a place where persons were likely to be at all times, without having a man on the advancing end of the train and without a light on the end car and without a warning or signal of any kind, contrary to the established practice and defendant's own rules. Savage v. Ry. Co., 40 S.W.2d 628; Crossno v. Terminal Railroad Assn., 41 S.W.2d 796; Beard v. Mo. Pac. Ry. Co., 272 Mo. 157; Kippenbrock v. Railroad Co., 270 Mo. 479; Cotner v. Railroad Co., 220 Mo. 284; Kinney v. Met. St. Ry. Co., 261 Mo. 111; Becke v. Mo. Pac. Ry. Co., 102 Mo. 550; Le May v. Mo. Pac. Ry. Co., 105 Mo. 370; Willi v. United Rys. Co., 205 Mo. App. 287. (a) Since defendant backed its train around a curve in the nighttime upon a track in a foreign yard, the vicinity being dark, in violation of its own rules and customs, as well as the customs of other railroads and of the yard into which it was proceeding, without a signal or warning of any kind and without a man or light on the advancing end of the cars, and where persons were likely to be at all times, it had no right to expect a clear track, and it was, therefore, incumbent upon the defendant to use every reasonable precaution after entering upon the switch track in the "Q" yards to avoid injuring persons walking upon or near the switch track. Savage v. Ry. Co., 40 S.W.2d 628; Crossno v. Terminal Railroad Assn., 41 S.W.2d 796; Beard v. Mo. Pac. Ry. Co., 272 Mo. 142; Kippenbrock v. Railroad Co., 270 Mo. 479; Kinney v. Met. St. Ry. Co., 261 Mo. 111; Kerr v. Bush, 198 Mo. App. 613; O'Connor v. Mo. Pac. Ry. Co., 94 Mo. 158; Church v. C. A. Ry. Co., 119 Mo. 203; Lueders v. Railroad Co., 253 Mo. 116; McQuitty v. Kansas City Ry. Co., 196 Mo. App. 450; Stephens v. Railroad Co., 199 S.W. 274; Aleckson v. St. Louis-S.F. Ry. Co., 213 S.W. 897.
Action by respondent, plaintiff below, to recover damages for alleged personal injuries. Plaintiff recovered judgment and defendant appealed.
This case is here on a second appeal. At the first trial plaintiff recovered judgment, and on appeal to this court that judgment was reversed and the cause remanded for error in refusing to give certain withdrawal instructions requested by defendant. The opinion in the former case is reported in 328 Mo. 826, 41 S.W.2d 796, to which we refer for a full statement of the facts. We will, however, state facts sufficient to an understanding of the points discussed.
Plaintiff was in the employ of defendant. Terminal Railroad Association of St. Louis, as a switchman. He was injured in the Chicago, Burlington and Quincy Railroad yards, known in the record as the "Q" yards. On February 5, 1927, at about eleven o'clock P.M., the plaintiff was struck and injured by a string of cars which the defendant was backing through the "Q" yards. These yards are located in East St. Louis, Illinois. Front Street is a public thoroughfare of East St. Louis running in a general north and south direction. The street is occupied by a number of railroad tracks and is also used for ordinary traffic. The "Q" yards are located along the east side of Front Street. The tracks in this yard run in a general east and west direction. Plaintiff was injured in the "Q" yard some distance east of Front Street. The track on which plaintiff was injured is referred to in the record as the "Q connection." This track extends north and south on Front Street some distance north of the "Q" depot where it makes a broad curve to the east and enters the "Q" yard from the west and runs east and west through the yards. There was a well-defined and much-used footpath north of and parallel to this track.
At the date of plaintiff's injuries, he was employed by defendant as a switchman in Wiggins No. 2 yard, working on a night shift which went on duty at eleven o'clock P.M. He was required to report for work at the yard office. This switch yard was located at or near the north end of Front Street. Plaintiff's evidence is to the effect that on the night of February 5, 1927, he left his home in East St. Louis to report for work, and that he walked west along the path on the north side of the "Q connection track," and, when he was yet some considerable distance east of Front Street, he crossed the "Q connection track" to the south and into a small depression for the purpose of answering a call of nature. After answering the call of nature, he returned northward intending to recross the track and resume his westward course along the path. As he neared the track, and before attempting to cross it, he looked to the east and to the west. The night was dark and he neither saw nor heard the approaching train. After thus looking he continued across the track and was struck by the train and injured.
It is defendant's contention that plaintiff was injured at a place where the operatives of the train were entitled to expect a clear track, and for that reason they were not required to be on the lookout for persons on the track, and therefore owed plaintiff no duty in that respect. On the other hand, plaintiff contends (1) that the use of the yards by defendant's employees and the employees of other railroads in that vicinity in going to and returning from their places of work was sufficiently habitual and continuous that defendant had no right to expect a clear track, and owed the duty to be on the lookout for persons on or near the track, and (2) that it was the custom and practice when backing a string of cars through the yards in the nighttime to have a man with a light stationed on the first or leading car to protect the property of defendant and the life and limb of persons who might be on or near the track, and that plaintiff knew of and relied upon such custom at the times in question.
Each party contends that the evidence supports their respective contentions.
It is fundamental law that a railroad's right to the use of its yards and tracks therein is paramount and exclusive, and for that reason they are presumably entitled to a clear track. However, the right to a clear track may be waived where evidence of user of the track by pedestrians is such that it tends to show that the railroad knew of and acquiesced therein. [Fry v. Railroad, 200 Mo. 377, 399, 98 S.W. 566.] So the question in this case is whether or not there was evidence tending to show user of the tracks by the employees of defendant and by the employees of other railroads in going to and returning from their place of work, sufficiently substantial in character, that a court could say that it tended to show that defendant knew of and acquiesced in such use of the tracks. If so, the evidence tended to show that defendant had no right to expect a clear track, and was under the duty to be on the lookout for persons on or dangerously near the track. If not, otherwise.
There was no evidence that any employee of defendant, or of any other railroad ever used a track in the yard as a footpath in going to or returning from work. It is true that plaintiff's evidence was to the effect that the employees used the yard, that is they walked through the yard in going to and returning from their work, but the evidence does not show whether they walked on a track, or on a path between the tracks or on a path where there were no tracks.
The only definite information on that subject is the testimony of plaintiff himself. His evidence is to the effect that he was going through the yards on his way to report to the yard office for work; that he was traveling his usual route in a well-beaten path to the north of and parallel with the track on which he was injured; that during his course, he left the path and crossed the track to answer a call of nature; that he attempted to recross the track to the path and was struck by the train and injured. There is no evidence that any employee of defendant or any employee of any other railroad in that vicinity ever used a track as a footpath or ever crossed a track while walking through the yard in going to and returning from their place of work. No contention is made that the yard or tracks were used by the public.
Although the employees of defendant as well as the employees of other railroads in that vicinity habitually crossed the yards in going to and from their place of work, if they did not use the tracks in so doing, the law would not require defendant to expect that they might be on the track, or be on the lookout for them. Otherwise stated, the use must be confined to the limits proved. Speaking to a like question in Fry v. Railroad, 200 Mo. 377, 401, 98 S.W. 566, we said:
"Did plaintiff bring himself within the doctrine of the rule announced in paragraph two of this opinion? That is, was the place he was struck a place defendant was entitled to a clear track but had no right to expect one? To bring a case within that rule, the use established in the public may be likened somewhat to that giving rise to a prescriptive right. i.e., the use must be a known use, and must be confined to the limits proved." (Italics ours.)
A like question was before this court in Hufft v. Railroad, 222 Mo. 286, 295, 121 S.W. 120. There the plaintiff, in company with another boy, was crossing the switch yards of defendant in the city of Lebanon, Missouri, about nine o'clock P.M. He caught his foot in the frog of a switch, and being unable to extricate himself, a backing train, then switching in the yards, struck and injured him. The plaintiff in that case attempted to show user of the tracks in the yards. Of that evidence the opinion states that: "Plaintiff offered several witnesses, the purpose of whose testimony was to show continuous user by pedestrians of the railroad track as a passageway or footpath. This testimony tends to show that there was considerable travel at different points for a considerable distance, but the evidence is not very definite as to any particular pathway, nor does it disclose clearly whether or not the place where plaintiff was injured was at or about the alleged pathway claimed to have been used by the public." Commenting on the sufficiency of that evidence to show user of the tracks, we there said, "We are not at all satisfied with the evidence upon the question of user. It is not definite enough in the present record to determine the portion of the track to which the user attaches, if to any."
The same thing may be said in the case at bar. While there was abundant evidence tending to show that the employees of defendant as well as the employees of other railroads walked across the yard in going to and returning from their places of work, no witness testified that they walked upon or across the tracks while crossing the yard. Otherwise stated, no witness except plaintiff, attempted to locate the portion of the yard used by employees in going to and returning from their places of work. Plaintiff testified that his route was along the path located north of and parallel with the "Q connection track." Evidence that employees habitually walked across the yards does not tend to prove they walked upon or across the tracks in so doing, and for that reason defendant owed plaintiff no duty to be on the lookout for him, or to warn him of the approach of the train. Plaintiff having failed to make a prima facie case upon the question of user, defendant's demurrer to the evidence should have been sustained.
Plaintiff, however, contends that the holding of this court on the former appeal that plaintiff made a case for the jury is the law of the case and must be followed on this appeal. The law governing this contention was clearly and tersely stated by this court in Davidson v. St. Louis-San Francisco Ry. Co., 256 S.W. 169, 301 Mo. 79, 85, as follows:
"It suffices to say that such opinion is the law of the case, unless the pleadings have been amended so as to introduce new issues, or the evidence on the retrial is substantially different, from the evidence considered upon the vital questions at the former hearing here. It should be further stated, however, that even if there is no substantial difference in pleadings and proof upon the retrial, yet if this court upon second appeal finds that it was in error upon the first hearing, it not only has the power and right to correct such error, but it would be the duty of the court so to do, in the interest of justice. This is true whether we erred in principles of law declared, or erred in the determination of what were the real facts of the case."
The opinion on the former appeal of this case does state that the uncontradicted evidence showed that the employees of defendant as well as the employees of other railroads in that vicinity went through the "Q" yard and upon and across the tracks there in going to and from their places of work. However, the sufficiency of the evidence to show user of the tracks was not questioned by defendant on the former appeal. The only point made at that time against the sufficiency of the evidence was that plaintiff was guilty of contributory negligence as a matter of law. In view of the fact that the sufficiency of the evidence to show user of the track was not challenged, evidently the writer of the former opinion took the statement of witnesses that the employees crossed over and through the "Q" yard as meaning that they went upon and over the tracks while crossing the yards. The sufficiency of the evidence on the question of user of the track is seriously challenged on the present appeal. We have carefully examined the abstract of record in both appeals and do not find in either record any evidence that the employees of defendant or the employees of other railroads in that vicinity ever went upon and over the tracks while crossing the yard in going to and returning from their places of work. For these reasons, the holding in the former opinion that plaintiff made a case for the jury, is not controlling on this appeal.
Our holding that defendant's demurrer to the evidence should have been sustained, obviates the necessity of discussing other questions raised.
The judgment should be reversed. It is so ordered. All concur.