10 Mo.App. 531 (Mo.App. 1881), Drain v. St. Louis, Iron Mountain & Southern Ry. Co.

Citation:10 Mo.App. 531
Opinion Judge:THOMPSON, J.
Attorney:THOROUGHMAN & PIKE, for the appellant: FINKELNBURG & RASSIEUR, for the respondent:
Case Date:June 28, 1881
Court:Court of Appeals of Missouri

Page 531

10 Mo.App. 531 (Mo.App. 1881)

JOHN DRAIN, Respondent,



Court of Appeals of Missouri, St. Louis.

June 28, 1881

1. One cannot recover for an injury received while crossing a railroad track, if he failed to look and listen, unless the circumstances were such that it would have been of no avail to do so; and this, though the defendant neglected to take the statutory precautions, and was otherwise negligent in the management of its cars.

2. Failure to perform a duty enjoined by statute or ordinance is negligence as matter of law, for which a recovery may be had by any person injured by reason thereof.

Appeal from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

THOROUGHMAN & PIKE, for the appellant: A traveller approaching a railroad track is bound to use his eyes and ears, so far as there is an opportunity, and when by the use of these senses danger may be avoided, notwithstanding the neglect of the railroad servant to give signals, the omission of the plaintiff to use his senses to avoid danger is concurring negligence, entitling defendant to a non-suit.-- Gorton v. Railway Co., 45 N.Y. 662; Fletcher v. Railroad Co., 64 Mo. 484; Morris R. Co. v. Haslon, 4 Vroom 149; Bunyan v. Railroad Co., 1 Dutch. 357; Chicago R. Co. v. Still, 19 Ill. 508; Chicago R. Co. v. Gretzner, 46 Ill. 74; Railroad Co. v. Heilman, 49 Pa.St. 62; Bellefontaine R. Co. v. Hunter, 33 Ind. 336.

FINKELNBURG & RASSIEUR, for the respondent: Instructions numbers 1 and 2 given on behalf of plaintiff, correctly lay down the general rule of negligence and the liability of railroads under the circumstances shown by the evidence in this case.-- Whalen v. Railroad Co., 60 Mo. 323; Isabel v. Railroad Co., 60 Mo. 475; Hicks v. Railroad Co., 64 Mo. 430; Burham v. Railroad Co., 56 Mo. 338; Frick v. Railroad Co., 5 Mo.App. 435. When a railroad company runs cars in violation of law, it is negligence per se, and it is no excuse to show that by the exercise of great care and foresight plaintiff might have avoided the injury. A person has a right to rely on the presumption that railroads will operate their vehicles according to law, and if he regulates his own conduct on that presumption, he has done all that can be required of him.-- Kennayde v. Railroad Co., 45 Mo. 255; Karle v. Railroad Co., 55 Mo. 476; Ernst v. Railroad Co., 35 N.Y. 9; Newson v. Railroad Co., 29 N.Y. 390.



This action is brought to recover damages for injuries sustained by the plaintiff by being struck by a freight-car of the defendant while attempting to cross its railway track. The track in question was a siding which ran diagonally along Main Street in the city of St. La. There were also two main tracks running along the street parallel with its sides. The plaintiff worked in a wire-mill which adjoined the street in the immediate vicinity of the spot where the injury occurred. He had worked there for ten years. On February 6, 1879, at about twenty minutes after six o'clock, the plaintiff left the wire-mill to go home. He started to cross this side track and was knocked down and run over by a single freight-car, which the defendant's servants had " shunted" or " kicked" down the track by means of an engine, for the purpose of sending it into a freight-house, which stood about two hundred and twenty feet to the north of the place of the accident. There was no person upon the car, nor any light upon it, nor was any person sent in front of it to warn street passengers of its coming. The evidence is conflicting as to the rate of speed at which the car was shunted, one of the plaintiff's witnesses placing it as high as fifteen miles an hour, and one of the defendant's witnesses placing it as low as three-and-a-half miles an hour. It is not probable that it was running at a high rate of speed, for it stopped before reaching the freight-house. An ordinance of the city of St. Louis makes it a misdemeanor to run a locomotive or cars, propelled by steam, within the limits of the city, at a greater rate of speed than six miles an hour. It also provides that when such...

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