Drain v. St. Louis

• Decision Date: 28 June 1881
• Citation: 10 Mo.App. 531
• Parties: JOHN DRAIN, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

10 Mo.App. 531

JOHN DRAIN, Respondent,

v.ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 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.

THOMPSON, J., delivered the opinion of the court.

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. Louis. 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 locomotives or cars are running, the bell shall be constantly sounded within the city limits, and that, if any freight-cars or locomotives propelled by steam power be backing within said limits, a man shall be stationed on top of the car at the end of the train farthest from the engine, to give danger signals, and that no freight-train shall at any time be moved within the city limits without it be well manned with experienced brakemen, at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine.

It appears from the testimony of the plaintiff himself that he did not look or listen for approaching cars before attempting to cross the side track. He says: “I had been to work all day in the mill, and I started to go home after six o'clock; * * * I went out of the door and there was an engine coming down; I didn't know there was cars or a car attached to it--I couldn't tell. I stood still until it went past; I thought I had an opportunity, and went to cross over, and I did not know any more. Q. Was there anything seen or heard by you indicating the approach of a train before you got on the track? A. I seen the train coming down and I stood until it went past. Q. After that train had passed, was there anything more seen or heard by you indicating the approach of a car or train? A. No, sir; nothing more.” On cross-examination: “ Q. You say that one train passed you, and you saw it coming and waited until it passed? A. Yes, sir. Q. Then you thought that the way was clear, and you went to cross the track and you knew no more about it? A. Yes, sir. Q. You didn't stop to look for anything further, thinking that was the only train? A. Yes, sir. That was the only train I saw. Q. You didn't stop to look for any more, supposing that was the only one to pass? A. Certainly.”

The witnesses stated that it was dark, and we may take judicial notice of the fact that there is little daylight at twenty minutes after six o'clock on February 6th; but the testimony leaves no room to doubt that it was not so dark but that the plaintiff would have seen the approaching car, if he had looked. It appears that the street was flanked with buildings, and the place was probably lighted, as the streets of St. Louis usually are. Three of the plaintiff's witnesses saw the car and were able to testify as to the speed at which it was going. Two of them also saw it with sufficient distinctness to testify that there was no man on...