12 S.W. 640 (Mo. 1889), Rine v. Chicago & Alton Railroad Co.

Citation:12 S.W. 640, 100 Mo. 228
Opinion Judge:Black, J.
Party Name:Rine v. The Chicago & Alton Railroad Company, Appellant
Attorney:G. B. Macfarlane for appellant. J. D. Shewalter for respondent.
Judge Panel:Black, J. Barclay, J., in the result, Sherwood, J dissents.
Case Date:December 21, 1889
Court:Supreme Court of Missouri

Page 640

12 S.W. 640 (Mo. 1889)

100 Mo. 228



The Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri

December 21, 1889

Appeal from Saline Circuit Court. -- Hon. J. P Strother, Judge.


G. B. Macfarlane for appellant.

(1) Plaintiff's second instruction was erroneous in that it directed the jury, in effect, that if defendant's employes saw Rine on the track, or switch, in time to have stopped the engine with safety, and failed to do so, then their negligence was such as to render defendant liable. The negligence to have charged defendant with liability must have occurred "when and after they actually became aware that deceased was in an exposed and dangerous position." This instruction is directly in conflict with the decision of this court when this case was before it. 88 Mo. 400. There was no evidence that deceased was in an exposed and dangerous position while on the main track; in fact, he was then in a place of perfect security, and if he had continued thereon he would have been unharmed. (2) Defendant had a right to instructions placing before the jury every legal phase of this case which was justified by the evidence. Bell v. Railroad, 72 Mo. 58; Chan v. Reid, 18 Mo.App. 115. Defendant's fifth and tenth instructions refused by the court should have been given; they fairly presented the question of contributory negligence to the jury. (3) Defendant's fourth instruction should have been given. A train man has the right to presume that a trespasser on the track of a railroad, who sees the train approaching, will leave the track in time to avoid his own injury. Kelly v. Railroad, 72 Mo. 138; Maloy v. Railroad, 84 Mo. 270; Railroad v. Graham, 12 Am. & E, Ry. cases, 77; O'Donnell v. Railroad, 7 Mo.App. 190; Bell v. Railroad, 72 Mo. 62. (4) The death of William Rine was brought about by his own negligence directly contributing thereto as appears from plaintiff's evidence in chief, and the jury should have been peremptorily instructed to find for the defendant. Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Yancy v. Railroad, 93 Mo. 436. (5) (a) Section 2121, under which this suit was brought, is a penal statute designed to insure the safety of the public by requiring of all railroad companies the employment of careful and competent servants to run, conduct and manage locomotives and trains, and no recovery can be had unless the pleadings and proof come strictly within the terms and conditions authorizing it. Parish v. Railroad, 63 Mo. 284; Barker v. Railroad, 91 Mo. 86; Keith v. Railroad, 1 Gray, 614. (b) The statute is in derogation of common law and must receive a reasonably strict construction. Jackson v. Railroad, 87 Mo. 422; Sedgwick, Const. Stat. 267 and note. (c) The statute is not only in derogation of the common law, but imposes a penalty on the employer for the negligence of its servants; the statute would otherwise deprive a defendant of the constitutional right to have the damages assessed by a jury. Five thousand dollars is imposed as a penalty and...

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