Becke v. Missouri Pacific Railway Co.

Decision Date30 June 1890
Citation13 S.W. 1053,102 Mo. 544
PartiesBecke v. The Missouri Pacific Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

(1) The first proposition advanced for appellant is based on the old exploded doctrine of Thorogood v. Bryan, 8 C. B. 114. This case has been followed in a few cases in America and England, and, after a precarious existence in criticism, has been generally repudiated. Bennett v. Railroad, 36 N. J. L. 225; Hunt v. Railroad, 14 Mo.App. 166; Keitel v. Railroad, 28 Mo.App. 663; Chapman v. Railroad, 19 N.Y. 341; Barrett v. Railroad, 45 N.Y. 628; Thompson on Car. 284-289. (2) As to the contention by appellant, that the court usurped the province of the jury, by declaring it negligence to run a train of cars in the night time, and dark, across a public highway without headlight, near a city, it is submitted that the cases are numerous where the court has done this. Welsh v. Railroad, 72 Mo. 455; Reilly v. Railroad, 94 Mo. 604; Loeffler v. Railroad, 96 Mo. 270; Taylor v. Railroad, 86 Mo. 462; Barry v. Railroad, 98 Mo. 71. (3) The instruction on the measure of damages was correct. Crumpley v. Railroad, 98 Mo. 38; King v. Railroad, 98 Mo. 239.

Brace J. Barclay, J., not sitting.

OPINION

Brace, J.

-- In this action, plaintiff sues to recover damages for the death of her husband, Charles Becke, who was a passenger in a public stage or hack, that was struck by a train of defendant, at a public crossing a short distance from Nevada, Missouri, thereby causing the said coach to be overturned and the said Becke injured so that he died within two days after the collision, from such injuries.

The plaintiff had judgment for $ 5,000, and the defendant appeals. The only errors urged as grounds for reversal are upon the instructions. They may all be considered upon instructions 1 and 3, given for plaintiff, and instruction A, refused for the defendant.

"1. If you find from the evidence that plaintiff was the wife of Charles Becke when he died; and that on January 16, 1886, said Charles Becke was a passenger on a public stage or hack going from Montevallo to Nevada, in Missouri, and had no control over the driver thereof, or of the management of said hack; and that the hack in which said Becke was then such passenger was struck on said day by an engine of defendant at the crossing of the railroad and a traveled public road near Nevada, Missouri, and not within any city, and that in consequence of said collision said Becke received injuries from which he died at Nevada, Missouri, on or about January 18, 1886; and if you further find from the evidence that said collision directly resulted from, or was caused by, the omission of defendant's employes in charge of said engine to give any of the signals mentioned in instruction, numbered 2; and that said Charles Becke, at and prior to said collision, was himself exercising ordinary care to avoid injury and danger, then your verdict should be for plaintiff, and you should assess her damages at the sum of $ 5,000."

"3. If you find from the evidence the facts to be as mentioned in instruction, numbered 1, except as to the omission of signals, and find on that point that one of the signals mentioned therein and more particularly described in instruction, numbered 2, was given; but if you then further find from the evidence that at the time and place of said collision it was no longer daylight, but was after dark, and that there was no headlight lit or burning on said engine, and that in consequence of said omission said collision occurred at said crossing, then your verdict should be for plaintiff, and you should then assess her damages at the sum of $ 5,000, that being the measure of damages fixed by the statute in this case in the event you find for the plaintiff under these instructions and the evidence before you."

"A. The court instructs the jury that if they believe from the evidence that on the nineteenth day of January, 1886, one Hanley was driving a hack from Montevallo to Nevada, and that he had driven that hack from Nevada to Montevallo and back six days each week for one-third of the time since the first of December, 1885, and had known the road ever since the railroad was built for four or five years, and had been over it often during that time and knew said public road on which he was traveling crossed the defendant's railroad at a point from a mile to a mile and a quarter southeast of the town of Nevada, in open prairie land, where the railroad train could be seen from half a mile to a mile and a quarter before the train reached said crossing, and that said train could have been seen or heard by said Hanley for a distance of thirty rods or more before he reached the crossing if he had looked in the direction of the train, or could have been heard by him if he had listened carefully, or if it was after dark in the evening from 6:10 to 6:25 o'clock p. m., and said Hanley had stopped and carefully looked and attentively listened that he could have seen or heard the train, and that said Hanley knew it was about train time, and notwithstanding said Hanley drove his team and hack onto the railroad crossing without stopping and carefully looking and attentively listening, and plaintiff's deceased husband was injured in consequence thereof, either by the train, or by reason of the team running away, upsetting the hack and dragging deceased, or otherwise, the defendant is not liable for injury so done, and the jury should find their verdict for the defendant, whether the whistle was sounded, the bell was rung or the headlight was lit or not."

I. It is contended by counsel for the defendant that the court committed error in refusing to instruct the jury, that the plaintiff could not recover if the driver of the hack in which her husband was a passenger was guilty of negligence which contributed to the injuries which resulted in his death, and that the doctrine laid down in Thorogood v. Bryan, 65 Eng. C. L. Reports 8 M. G. & S. 114: "That a passenger upon the vehicle of a common carrier, who sustains an injury which is the result of the concurrent negligence of those in charge of such vehicle and third persons, is so identified with the former as to be chargeable with their negligence in an action against the latter and therefore only entitled to recover damages from his carrier," should govern the case. This doctrine, from the time it was first announced in Thorogood v. Bryan, in 1849, though afterwards followed by the English courts for a time (Armstrong v. Railroad, 10 L. R. Exch. 47) was continually subjected to adverse comment and criticism, until recently in the case of "The Bernina" (January 24, 1887 12 L. R. Prob. Div. 1887, p. 58) the whole question was re-examined and the authorities, English and American, reviewed by the court of appeals of England, and the doctrine condemned, and Thorogood v. Bryan and the cases that followed it cannot any longer be considered authority even in England. Lord Escher, M. R., thus sums up in the "Bernina" case: "After having thus laboriously inquired into the matter and having considered the case of Thorogood v. Bryan, we cannot see any principle upon which it can be supported, and we think that with the exception of the weighty observation of Lord Bramwell, though that does not seem to be a final view, the preponderance of judicial and professional opinion in England is against it, and that the weight of judicial opinion in America is also against it. We are of the opinion that the proposition maintained in it is essentially unjust and inconsistent with other recognized propositions of law. As to the propriety of dealing with it at this time in a court of appeal, it is a case which from the time of its publication has been constantly criticized. No one can have gone into or have abstained from going into an omnibus, railroad or ship on the faith of the decision. We, therefore, think that, now that the question is for the first time before an English court of appeal the case of Thorogood v. Bryan must be overruled."

The doctrine of Thorogood v. Bryan has received the sanction of some American courts, notably in Lockhart v Lichtenthaler, 46 Pa. 151, and others might be cited, but it has never been generally recognized or followed in this country; in fact the great weight of American authority is against it, and to this conclusion the supreme court of the United States arrived in the recent case of Little v. Hackett, 116 U.S. 366, 29 L.Ed. 652, 6 S.Ct. 391, after a thorough consideration of the subject and a review of the American authorities. That it is unsound in principle and against the weight of...

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