Moberly v. Kansas City, St. Joseph & Council Bluffs Railroad Co.

• Decision Date: 20 May 1889
• Citation: 11 S.W. 569,98 Mo. 183
• Parties: Moberly v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant
• Court: Missouri Supreme Court

11 S.W. 569

98 Mo. 183

Moberly v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri

May 20, 1889

Appeal from Buchanan Circuit Court. -- Vinton Pike, Esq., Special Judge.

The action is for personal injuries sustained by plaintiff at the crossing of a public highway by a collision with an engine on defendant's railroad. The engine struck the wagon on which plaintiff was driving and threw him out. The negligence charged against defendant is the omission of the statutory signals by the approaching engine, in permitting brush saplings, etc., to remain on its right of way, obstructing the view of persons using the public road as plaintiff was doing, and in not keeping the crossing itself in the condition prescribed by law. A description of the locality of the accident appears in the report of a former appeal to the Kansas City court of appeals. As the same evidence on that subject was given at the last trial, it need not be repeated. Moberly v. Railroad, 17 Mo.App. 518.

There was testimony tending to prove all the items of negligence above noted. The evidence at the last hearing developed some particulars, concerning the condition of the crossing proper not alluded to in the report of the former appeal. Plaintiff testified that there was a difference of an inch or two between the height of the rail of the track and the plank next to it, forming part of the crossing; that when he saw the engine close upon him, he tried to escape by whipping up the horses, but that the hind wheel of the wagon caught on the rail and was dragging on it when the engine struck it. Plaintiff testified that he stopped his team, looked and listened for the train before attempting to cross; that he saw and heard nothing of its approach until his horses were on the track.

Among the instructions given at the instance of the plaintiff were the following:

"No 5. The court instructs the jury that negligence in this case on the part of the plaintiff, means the failure on his part, under all of the circumstances by which he was surrounded at the time of the accident, and shown in evidence, to exercise such care as an ordinarily prudent man would have exercised under such circumstances, and the law presumes that plaintiff did exercise such care, and the jury cannot find plaintiff guilty of any negligence unless all the facts and circumstances shown in the evidence, taken together, show to the satisfaction of the jury that plaintiff did fail to exercise such care, and the burden of proof is upon defendant to show such negligence on the part of plaintiff.

"No. 6. The court instructs the jury that while plaintiff was bound to stop and look and listen for the train, before passing onto the railroad, if by so stopping, looking and listening he could have seen or heard such train, still the jury are further instructed that he is not guilty of negligence because he failed to select the best possible place to see or hear such train, if they find from the evidence that he exercised ordinary care in selecting the place where he did stop and look and listen, if he did so stop and look and listen for such train."

The jury found in plaintiff's favor. After the usual motions and exceptions, defendant appealed.

Reversed and remanded.

Strong & Mosman and Henry S. Kelley for appellant.

The fifth instruction for plaintiff should not have been given. It is ambiguous and calculated to mislead the jury. It does not announce a correct proposition of law, in declaring "that the law presumes that plaintiff did exercise such care," etc. The facts, in relation to the conduct and actions of the plaintiff in crossing, were fully shown by the evidence, and it was simply a question of fact for the jury whether plaintiff's actions were negligent or not. There was nothing from which to draw any legal presumptions in favor of the plaintiff. Presumptions only obtain in the absence of evidence. Spaulding's case, 33 Wis. 582. The courts have uniformly condemned the statement of this proposition when couched in much milder terms. Stebbins v. Railroad, 62 Md. 518; Justice v. Lang, 52 N.Y. 327; Whitsett v. Railroad, 25 N.W. 107; Ham v. Barrett, 28 Mo. 388; 1 Greenl. Ev., secs. 44, 48. This instruction is inconsistent -- contradictory of itself in telling the jury that they could not find plaintiff guilty of negligence, unless the facts and circumstances shown in evidence show to the satisfaction of the jury that he failed to exercise such care, and then declares that the burden of proof is upon defendant to show such negligence. This would mislead the jury under the condition of the evidence in this case. Its effect was to exonerate plaintiff, so far as his proof was concerned, from negligence,...