The intelligencer. [volume] (Lexington, Mo.) 1887-1891, 1890-02-15
RINE VS. O. & A. 3. 3.

Maciariane, attorney tor appellant.
OPINION OF THE COURT.
This is the second appeal prosecuted
by the defendant In this case; the first
is reported in 3S Mo-, 1872. IL was then
aud is now conceded that Young Rins
was wrougfully upon the track vt the
lime and place when and where he
was killed, and that he was guilty OF
negligence in going upon aud remaining
upon the track. In view of these facts
we hold OH the former appeal that the
| defendants liability must be limited 10
negligence on The part OF the fireman
aud engineer after they knew that RIne
" as in an exposed and dangerous posi-
ton, and that when they had such
knowledge, il became their duty to use
all the means at their command to save
bis life. The case was tried pursuant
| To these directions on instructiOnsg given
At the request of the plaintiff, and
| others given at the request of the defen.
daDt TO which no substantial objections
are made.
The point is now made and much re
| lied upon for reversal that there 10 no
| evidence tending to show that the fire.
man or the engineer saw Rine on the
track In time TO have q, oided the Ca.
| iamity.
While the evidence 10 In q general
way the same as on the former appeal,
ii Is not the same upon the question OF
know ledge of Rine's presence on the
track from the TACT that the fireman and
engineer were not called as witnesses
on the second trial by either party. The
evidence now is, In substance, this:
Rine came into COrder on the local
freight tram from the east. The depot
nj that place is on the north and the
warehouse on the south side Of the
main and two sidetracks. Part OF this
freight train was left standing at the
depot OIL the main track, ana while the
evidence is not direct It seems some
oi the cars were removed to the outer
side track aud left standing at the
| W warehouse. The engine aud tender
then went to coal shaft, about quar-.
ter of mile west OF the depot, and In
the meantime Rine went to the village.
On his return he came to point where
the highway crosses the main railroad
track, which point is 800 feet west OF
the depot. He then went east low ards
the depot on the main track some 90 or
| % feet to a switch attachment, and
then looked back and must have seen
the engine and tender on their return.
Tor they were not more than go or I5O
feet distant iron him, stepped on the
outer side-irack aud walked on with
bis back 10 the approaching tender and
engine, the tenuer being nearest him.
iur distance estimated al 60, 80 and
l20 feet, when the tender ran over hiin
he engine and tender were going al
the rate OF eight or ten miles an houi
and could have been stopped
In O distance of from 10 to Is
teet. No effort was made to
check or stop them. The engineer was
al his proper place on the north side OF
the cab, and could have seen Rine be-
fore he got on the side track, but not
after that. except by going TO the south
side OF the cab. The fireman was on
top of the tender with something In his
hand, breaking coal. and could have
seen RIne at any time after the latter
got on the main track at the road cross
Ing.
Rine evidently stepped on the side
track, supposing the engine and tender
would 60 back to the depot on the
main track. There can be no doubt
that he was In a dangerous position
from the moment he stepped apon the
side track, and the question Is whether
the foregoing evidence tends to show
that the fireman or engineer saw him
upon that track.
This question must be determined
from all the circumstances. There
were no obstructions, such as cars, on
any of the tracks between the Goa
shaft and the depot or warehouse.
The switch seems TO have been lef)
open by design, doubtless SO the engine
and tender could 60 back to the ware.
honse and get the cara left at tha
place. The fireman must have known
when this switch was open; certainl,
SO when he passed over it. He knew
the cars were standing on the track q
the warehouse, and that he would
, come In contact with them. 1t was BIZ
duty to guard against q collision witt
the standing cars, and II is REASONABLE.
+ to believe that he had an eye In tina
direction. Tie accident happened q
the depot while the engine aud tender
were going back and forth over tb,
, tracks, and common information
teaches US that the employees would, In
, the discharge OF their ordinary duties
be on the watch. Evidence uf negli
zence need not be direct aud positive
. "In the nature of the case the plaintiff
must labor under difficulties In provin,
; ine fact of negligence, aud as that fac
itself is always u relative one, IL :s sus
E ceptible of proof by evidence Of cir
/ cumstauces bearing more or less di
D rectly upon the fact of negligence,
1 kind OF evidence which might not b
satisfactory Ia other classes Of case
open to clearer proof" I Shear an,
D Red. on Neg, 4th Ed, section 5S.)
e demurrer to the evidence admits ever
r fact which the jurors may inter iron
q the evidence before them, and shoul
be allowed only when the evidenc
I thus considered fails 10 make proof Q
q some essential syerment. (Noeninge
vs. Voght ,3s Mo 592 and cases cited
il All the circumstances surroundin
!. the accident are TO be considered, an
!. when this is done we are OF the opinio
4 that there is evidence from which I'll
: ljury could we'll find that the fireman, &
d least, saw Rine on the track, and tha
i too, In time to save his life. ....
The principal objection made to th
tudt ho thS SCI Va "
. defendant were not bound to be on th
;, atch for Rine, they ought not to b
= held to have had knowledge that
= was on the track simply because the
:, , were in position and had an oppor
= tunity to see him. Had the court tol
!, the jury that an opportunity to knO'
- vas sn equivalent TO knowledge, the
there would be to.ce In the objection
:, but the court did not 30 inss.lct.
knowledge, like actual notice, ma
be proven by direct evidence, or II INA
be inferred from other facts and cir
:, cumstances. When II 10 Inferred froI
!. facts and circumstances II 10 actui
knowledge, the same as when prove
by direct evidence. An opportunity ,
. know will, under some circumstance
y 20 far to show knowledge, and, undt
. other circumstances, II may be Of litt
+, value. We think the plaintiff mad
!, out prima facie case, one entitlin
!, her to 90 to the jury, and as the deter
dsnt did not call those servants wi
y could have given direct evidence, Il b,
!. no one TO blame but itself for any nis
n take on the part OF the jury, if~ny the
!, made.
;. The defendant makes the furth,
> point that it is liable only to pay Il
. penalty of S5 900 when the negligenC
a Is that OF the servant who is the sup
rior in command, namely, the engines