Jennings v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 28 June 1889
• Citation: 11 S.W. 999,99 Mo. 394
• Court: Missouri Supreme Court
• Parties: JENNINGS v. ST. LOUIS, I. M. & S. RY. CO.

11 S.W. 999

99 Mo. 394

JENNINGS v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

June 28, 1889.

RAILROAD COMPANIES — ACCIDENTS AT CROSSINGS.

1. In an action for personal injuries caused by a moving train, plaintiff's own evidence tended to show that he neglected to properly look and listen before attempting to cross defendant's tracks. The court, at defendant's request, instructed the jury that plaintiff's negligence would defeat his recovery, unless "the servants of defendant in charge of said cars or train, after discovering the peril in which plaintiff was, failed to make use of all reasonable means in their power to avoid striking him, and that he was struck in consequence solely thereof." Held, that defendant, on appeal, could not insist that the judgment for plaintiff should be reversed without remanding the cause, as its own instruction presented a theory upon which a recovery might be had notwithstanding plaintiff's negligence.

2. At the point where plaintiff was injured there were some 30 railroad tracks crossing the street. An ordinance required the railroad company to keep gates "on both sides of its tracks" on that street. Held, error to charge that plaintiff might recover if there was no gate on either side of defendant's "track," as the jury might infer that each track must have its own gates.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Bennett Pike, for appellant. Kehr & Tittman, for respondent.

PER CURIAM.

Plaintiff sues for damages sustained at one of defendant's railway crossings in St. Louis, by reason of alleged negligence on defendant's part. The answer is a general denial. Defendant's fault, as charged, consisted in the violation of municipal ordinances requiring gates and a flagman at the crossing, a watchman at the end of a backing train, a crew of brakemen thereon, and constant ringing of the engine bell. It appeared, at the trial, that some 30 railway tracks crossed Lesperance street. They run north and south. The street runs east and west. There are two main tracks, called the "North-bound" and "South-bound." Plaintiff was hurt on the track which was the third west of the west main track. On the track next west of the west main track was a standing line of freight-cars, beginning in the road-way of Lesperance street, extending thence a considerable distance southward, and cutting off the view, in that direction, of persons going westward, while east of that track. The second track west of the west main track was clear. The distance between the standing cars on the track next west of the main track and the third track west — where the accident occurred — was about 20 feet. The injury took place about 9:30 A. M. in May. Plaintiff, among other things, testified that he was there on business, familiar with the locality, sometimes crossed the tracks several times a day. That morning he talked some time to some parties a little distance east of the main tracks. An express train some distance off was observed coming south on the main line. He started west. Crossed the main tracks. Before doing so, looked up and down the tracks. Saw no train west of the stationary freight-cars. Passed these cars, then turned to look at the express train. While in that position, was struck by a freight-car backing northward. It will be assumed, for the purposes of this hearing, that there was evidence tending to show negligence on defendant's part in failing to obey the municipal ordinances in the particulars mentioned in the first instruction given for plaintiff by the court, which was as follows: "If the jury believe, from the evidence, that the plaintiff was struck and injured by any freight car or cars, propelled by steam-power, and operated by defendant, and was so struck in Lesperance street within the limits of the city of St. Louis; that, when so struck by said car or cars, there was no gate on either side of defendant's track at Lesperance street, or that no flag was displayed, or that said car or train of cars was...