Murray v. Missouri Pacific Railway Co.

• Decision Date: 02 June 1890
• Citation: 13 S.W. 817,101 Mo. 236
• Parties: Murray v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

13 S.W. 817

101 Mo. 236

Murray v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 2, 1890

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Bennett Pike and Henry G. Herbel for appellant.

(1) The court erred in giving the instructions asked by plaintiff. Milburn v. Railroad, 86 Mo. 109; Stepp v Railroad, 85 Mo. 226; Kelly v. Railroad, 75 Mo 141; Smith v. Hardesty, 31 Mo. 412; Hurt v. Railroad, 94 Mo. 256; Dowling v. Allen, 88 Mo. 299; Railroad v. State, 31 Md. 357; s. c., 100 Am. Dec. 71; Henze v. Railroad, 71 Mo. 638; Isaacs v. Skrainka, 95 Mo. 517; Mathiason v. Mayer, 90 Mo. 585. (2) The verdict is against and unsupported by the evidence, and should, therefore, have been set aside.

A. R. Taylor for respondent.

(1) The point that the first instruction given for plaintiff, as to the burden of proof, is erroneous is clearly untenable. Petty v. Railroad, 88 Mo. 306; Donovan v. Railroad, 89 Mo. 147; Thorpe v. Railroad, 89 Mo. 655. (2) Whilst it may be true, that, as to the value of services involving science and skill, an opinion of an expert, as to value, is necessary proof, yet in services commonly rendered by all mankind, such as nursing the sick, one man is supposed to know as much on the subject as another. In the language of this court, the value of such services "may be measured by the experience and judgment of the jury," without proof of value. Parsons v. Railroad, 94 Mo. 296; Nagel v. Railroad, 75 Mo. 666. (3) The criticism of the third instruction given for plaintiff is wholly without merit. If plaintiff was free from fault, any negligent act of defendant directly contributing to plaintiff's injury renders defendant liable. McDermott v. Railroad, 87 Mo. 301. (4) Even if there was no requirement in either the third or fourth instruction, that plaintiff should have been in the exercise of ordinary care, still as the question of plaintiff's care was submitted to the jury fully in defendant's instruction number 2, and as the instructions are to read as a whole, this could be no error. Owens v. Railroad, 95 Mo. 181, overruling Sullivan v. Railroad, 88 Mo. 182, followed by Dougherty v. Railroad, 97 Mo. 661.

OPINION

Black, J.

-- This is a personal damage suit. Plaintiff was a driver of a hose carriage connected with the fire department of the city of St. Louis. He and others in charge of the hose were going north on Summit street. The defendant's road crosses this street, there being four or five tracks at the crossing, which run in an east and west direction. As the plaintiff attempted to go over the crossing, a train of box and flat cars backed in from the west and struck his team and carriage. He was thrown from his seat and received severe and permanent injuries, one of them being a broken leg. The cause of action is based upon a violation of certain ordinances which make it the duty of defendant to have a watchman at crossings like the one in question to display a signal flag; to constantly sound the engine bell when the train is moving; to have a man stationed on top of the car furthest from the engine, when the train is backing, to give danger signals; and to have the train well manned with experienced brakemen at their posts.

Undisputed evidence shows that the gates at the crossing were up at the time of the accident, that there was no flagman present, and that a caboose car stood on one track so as to obstruct, to some extent, a view of the backing train. Other evidence for the plaintiff tends to show that he was driving his team at a walk or slow trot; that he exercised due care; that there was no man on the car furthest from the engine, and that the bell was not ringing. The defendant's evidence tends to show a full compliance with the ordinances in the last-mentioned respects. The accident occurred during a strike by the defendant's employes, and a number of strikers and policemen were at the crossing. There is evidence to the effect that four or five persons shouted to plaintiff to stop when he was fifty feet from the tracks, but that he went on, seeming to think the train was not close enough to catch him. Plaintiff says no one hallooed to him until just as the train struck his carriage, and in this he is corroborated by two persons who were on the hose carriage.

1. Of the instructions given at the request of the plaintiff the first is, that the burden of proving negligence of defendant, as alleged in the petition, is upon the plaintiff, and the burden of proving negligence, as alleged in the answer, is upon the defendant. That this instruction asserts correct propositions of law in the abstract is conceded; but the objection to it is, that it deprived defendant of the benefit of evidence offered by the plaintiff, tending to show contributory negligence on his part. There was some evidence introduced by the plaintiff having some tendency to show he might have seen the approaching cars, and that he attempted to cross the track when he should have stopped. There is nothing, however, in the instruction which deprives the defendant of the benefit of this evidence. It does not say that the defendant must show contributory negligence by the evidence of witness, introduced by itself. The jury are left to determine the question from all the evidence, no matter by whom offered.

2. The instruction concerning damages allowed, among other things, a fair compensation "for any expenses necessarily incurred by plaintiff for medical attention and nursing." The objection is that there is no evidence of any expenses incurred for nursing. The plaintiff was in bed for five months, and, according to the evidence of the surgeon, was nursed by the ladies about the house, who were constant in their attendance, relatives, he thinks. There is no other evidence upon the subject. This case is quite unlike that of Duke v. Railroad, 99 Mo. 347, 12 S.W. 636. There the jury was told that, if plaintif...