Kellny v. The Missouri Pacific Railway Co.

• Decision Date: 19 May 1890
• Parties: Kellny v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

13 S.W. 806

101 Mo. 67

Kellny v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

May 19, 1890

April 1890

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

Reversed and remanded.

Henry G. Herbel for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence, interposed at the close of plaintiff's evidence in chief. Spiva v. Coal Co., 88 Mo. 73, and authorities cited under second point. (2) The court erred in overruling defendant's motion for a new trial for the reason that the evidence does not support, but is contrary to, the verdict. State v. Hunt, 91 Mo. 490; Powell v. Railroad, 76 Mo. 82; Mathieson v Mayer, 90 Mo. 585; Stepp v. Railroad, 85 Mo. 233; Braxton v. Railroad, 77 Mo. 458; Kendrick v. Railroad, 81 Mo. 521; Waldheir v. Railroad, 71 Mo. 518; Gurley v. Railroad, 93 Mo. 450; Rafferty v. Railroad, 91 Mo. 37; Peterson v. Case, 18 Am. & Eng. R. R. Cas. 581; Bene v. Jeantet, 129 U.S. 683; Maloy v. Railroad, 84 Mo. 276; Muldoney v. Railroad, 39 Ia. 622. (3) The court erred in overruling the motion for a new trial, because the verdict is opposed to physical laws, and manifests prejudice and passion on the part of the jury. Spohn v. Railroad, 87 Mo. 74; Garrett v. Greenwall, 92 Mo. 125; Whitsett v. Ransom, 79 Mo. 260; State v. Woolaver, 77 Mo. 104; Lockwood v. Railroad, 6 Am. & Eng. R. R. Cas. 160; Stoher v. Railroad, 91 Mo. 517; O'Donnell v. Railroad, 7 Mo.App. 193. (4) The verdict is excessive, and manifests passion or prejudice on the part of the jury.

Wm. C. & J. C. Jones for respondent.

(1) The jury found specially that defendant's engine struck the wagon and ran over plaintiff; also that the train was running in excess of six miles per hour. (2) The injury was caused by the excessive rate of speed, and plaintiff is entitled to recover on that ground. Robertson v. Railroad, 84 Mo. 122; Bowman v. Railroad, 85 Mo. 539; Dunn v. Railroad, 21 Mo.App. 199; Kendrick v. Railroad, 81 Mo. 522; Persinger v. Railroad, 82 Mo. 199. Proof of the omission of the statutory duty and of the injury make a prima facie case. Turner v. Railroad, 78 Mo. 578; Alexander v. Railroad, 76 Mo. 497; Keim v. Transit Co., 90 Mo. 323. See, also, Kelly v. Railroad, 88 Mo. 548, and Taylor v. Railroad, 83 Mo. 390; O'Connor v. Railroad, 94 Mo. 157. Running of cars in populated districts at a rate in excess of that prescribed by the ordinance is gross negligence. Eswin v. Railroad, 96 Mo. 294; Reilly v. Railroad, 94 Mo. 600.

Brace J. Ray, C. J., and Black, J., concurring; Sherwood, J., concurs in the result; Barclay, J., not sitting.

OPINION

Brace, J.

-- Action for damages for personal injuries; verdict and judgment for plaintiff for five thousand dollars. Defendant appeals.

The petition charged negligence in defendant's employes in managing and operating the train which caused the injury, specifying failure to ring the bell and running at a greater rate of speed than six miles an hour, in violation of city ordinance. On the first act of alleged negligence no evidence was given. The answer was general denial, and a plea of contributory negligence.

The accident happened in the city of St. Louis on the levee between Christy avenue and Morgan streets. The evidence for the plaintiff tended to prove that the plaintiff was a rag peddler; that in the course of his business he was pursuing his way in a one-horse wagon along the levee in the city of St. Louis, which lies in a general direction north and south, and on which the defendant's track was laid, and on which it was operating its train. He was going north on the levee; near the corner of Christy avenue and the levee, he found the space on each side of the track for a distance of about fifty feet occupied by wagons, leaving an open way between them occupied by defendant's track as the only way for him to pursue his journey unobstructed. He entered this gang-way between the wagons, drove along it, the east wheels of his wagon on the inside of the west rail of the track, and his west wheels on the outside, a distance of about forty or fifty feet when the hind wheel of his wagon was struck by the defendant's engine drawing a train of freight cars going north on its track, and the plaintiff was thrown out of his wagon, onto the west rail of the track in front of or under the engine, which passed over him crushing his left arm and elbow so that his arm had to be amputated, bruising one of his legs, inflicting a cut over one of his eyes, and several contusions on his back. That at the time of the collision the train was going at the rate of about fifteen miles an hour; that it did not stop but passed on at the same rate of speed. That a train of fifteen loaded cars going north on this grade at fifteen miles an hour could not be stopped within less than nine hundred feet, and going at the rate of six miles could not be stopped within sixty feet, and that a train of eight loaded cars going four or five miles an hour could be stopped within thirty feet, and going at the rate of fifteen miles an hour within from four hundred to four hundred and fifty feet. That at the time the plaintiff's wheel passed inside the track he did not look back south in the direction from which the train was coming, nor afterwards before he was struck.

The defendant to sustain the issues on its part introduced the evidence of the employes engaged upon the train, the leading witness of whom, John A. Cook, testified as follows: "I was a switchman and brakeman on the Missouri Pacific railway on the ninth day of July last; remember of an accident occurring on the afternoon of that day between 4:30 and 5:30 o'clock, on the levee between Morgan street and Christy avenue; I was on the rear end of the rear car of a train going north on the levee at that time and place; I saw a one-horse wagon with three persons in it standing near the curb-stone; as the train was passing it, the horses began to back and backed the wagon up against the last or next to the last car of the train; I was on the top of the rear box car at the time, about thirty feet from the wagon and looking at it; I did not know whether plaintiff was in the wagon or not; I did not know him at that time; when we came back I went in to see how seriously he was injured, but could not learn anything from him as he couldn't talk and would not tell us anything; the wagon did not tilt up, the rear wheels backed into the car and the horses started up again; don't know whether Kellny fell or jumped out of the wagon; our train went up to Biddle street and came back again in five or six minutes; there were ten or eleven cars in the train -- box cars; the train was not moving faster than five or six miles an hour at that time; the rear wheels of the wagon struck the car; the cars were loaded."

Tatley, the brakeman, testified, that he was standing on the front of the engine from the time it left Poplar street and did not notice any team on the track as the engine passed along between Christy avenue and Morgan street; that he was in a position to see one, if there had been one on the track and that the train was running between four and six miles an hour; that he saw the plaintiff's wagon on the west side as he passed.

The fireman and engineer also testified that they were at their posts, observing the track and they did not see plaintiff's wagon on the track, and that it was not struck by the engine.

On cross-examination, the engineer, Lunderberg, testified that he "saw no obstruction between Christy avenue and Morgan street as we went north on the levee; saw none from the bridge to Biddle street. The way was perfectly clear, and if Kellny had been on the track I would have seen him."

The evidence of Donderville, the fireman, was to the same general purport as the others. In addition he testified that the train was loaded with ice and beer, and upon this grade could be stopped to prevent an accident when going at the rate of four or five miles an hour within sixty feet, and going at the rate of fifteen miles an hour "within five carlengths or less, say eighty feet."

It seem to be undisputed that the distance from the bridge to the place of the accident was about four hundred and fifty feet. That there was nothing to prevent the defendant's employes from seeing the plaintiff's wagon on the track (if it was on the track) during the whole time the train was passing from the bridge to the place where the collision took place.

Upon this state of facts the court upon its own motion gave the following instructions on the main question:

"1. Under the pleadings and evidence in this case the court instructs you that, at and just before the alleged injury the plaintiff was not exercising ordinary or proper care to avoid injury or danger; and, therefore, your verdict should be for the defendant, unless you further find the facts to be as mentioned in instruction two.

"2. If you find from the evidence that in the early part of July 1886, the plaintiff's wagon was struck by an engine of a train operated at the time by defendant on the levee between Christy avenue and Morgan street; that in consequence thereof plaintiff was run over by said engine and injured; that said wagon was so struck by reason of the fact that said train was then running at a rate of speed greater than six miles an hour, and that if said train had not been running at a rate greater than six miles an hour, the train could have been stopped in time to have averted the said collision with plaintiff's wagon, after defendant's employes in charge of said train had discovered (or by the exercise of ordinary care could have discovered) that plaintiff or his wagon was in danger of being so struck; and, if you so find the facts to be, your...