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

• Citation: 101 Mo. 93,13 S.W. 893
• Court: United States State Supreme Court of Missouri
• Decision Date: 02 June 1890
• Parties: WILKINS v. ST. LOUIS, I. M. & S. RY. CO.

13 S.W. 893

101 Mo. 93

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

Supreme Court of Missouri.

June 2, 1890.

RAILROADS — STREET CROSSINGS — CITY ORDINANCE — NEGLIGENCE.

1. When city ordinances prescribe certain precautions to be observed by railway companies at public crossings, they do not relieve the companies from the observance of ordinary care in particulars not mentioned in the ordinances.

2. When a city ordinance requires the presence at a railway crossing of a watchman, "who shall display at the cars, in the day-time, a red flag," it is not sufficient if a watchman is present with a flag at the crossing; but he must also warn passers of the danger from approaching trains.

3. An instruction, "by the term `negligence,' as used in the instructions, is meant the want of that degree of care that an ordinarily prudent person would have exercised under the same circumstances," is not erroneous.

4. When a person is attempting to pass at a public crossing between two cars, knowledge on his part that one of the cars is being moved by an

engine does not render him guilty of negligence, unless he also knew that the effect of the motion was to shove the cars together.

5. When a part of an ordinance is relevant, and another irrelevant, the admission of the whole ordinance is not error, in the absence of a motion to exclude the irrelevant part.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

The action is to recover damages under the statute for the death of plaintiff's husband, who was killed in St. Louis, at the Lesperance-Street crossing of defendant's railroad, by alleged negligence in operating the latter. The issues for trial arose upon a general denial of the petition. The facts of relationship of the plaintiff, and the death of the husband, were admitted; but, as an important issue arose on a refused instruction, in the nature of a demurrer to the evidence, it will be proper to briefly outline the testimony, in so far as it is supposed to establish plaintiff's case. The substance of the evidence given by the principal witness for plaintiff is as follows, viz.: She knew deceased well. On the day he was killed, she was standing on the west side of the railway tracks on Lesperance street, at about 4 or 5 o'clock, intending and waiting to cross the railway tracks there, and to go down to the river. When she first saw Wilkins, he was on the east side of the train. She had been standing on the west side of the train about 15 minutes before the accident happened. During that time the train was standing still, and "they were switching." The train was "headed" south. "They" were backing up the cars at that time. Wilkins, just before he was killed, was standing on the east side of the train, near a flat-car. There was an opening between the ends of the cars, as he intended or attempted to cross, about as "narrow" as a door. "Plenty of room enough for one to go through." She had been standing there, while this space was there, before Wilkins attempted to go through, five minutes or more. There was no man stationed on the back end of the train, and no men on the top of the cars that were shoved back, north of the street, and no gate across the street there. There was no bell rung or whistle sounded as "they" moved the train back. The brakeman connected with the train was on the west side of the train, and the watchman was on the same side, "further south," and he was talking with witness and another lady. She saw no other person standing there. The brakeman was standing on the west side of the train, close up to the car. When Mr. Wilkins attempted to go through, the part of the train pushed up from the south crushed him. Wilkins' legs were broken, and his stomach crushed. On cross-examination, witness said that she knew this crossing well, and had been over it frequently; that at the crossing there is a plank-road over the same, half as wide as a street; that she had seen the cars back up before, and make an opening for teams to go through, and had frequently seen an opening at said crossing, between the cars, of 25 or 30 feet in width, so that people could cross there on the plank-road; that she had frequently seen the railway employes make the opening there after backing up trains; that, when she first went down there, there was a train on the crossing, and Wilkins was standing on the east side, and his team was on the west side; that they were switching cars back and forth there; that she had been standing there 10 minutes before the opening was made; that she and another lady were waiting there to go across the track; that she didn't attempt to go through when they made the little opening of about two feet, and was waiting for them to make a wider opening; that the opening was so narrow that Wilkins had to go through sideways; and that, as he got in front of the draw-bars, they came together, and crushed him. The plaintiff then offered several city ordinances to the following effect, giving only their substance, viz.: That defendant should maintain gates and place a watchman at the street crossing in question; that watchmen at such crossings should display at the cars in the day-time a red flag, and at night a red light; that cars, etc., propelled by steampower should not obstruct any street crossing by standing longer than five minutes, and that, when moving, the bell of the engine should be constantly sounded, and a man should be stationed on the top of the car furthest from the engine of any backing train to give danger signals; that no freight train should be moved in said city unless well manned with experienced brakemen at their posts, so stationed as to see the danger signals, and hear the signals from the engine. One of defendant's witnesses described the movement of the train in question as follows: "The train by which Wilkins was injured was on track 7, in what is called the `East Yard,' at the Lesperance-Street crossing. It was a lot of cars that had been switched from trains that had come off the road. They were engaged in shoving the cars from the south end of track No. 7 to the north end, in order to make room. There were 18 cars in said train, part box and part flat cars." He did not see Wilkins till after the accident. The accident happened on track 7 At that time, there were 11 cars of said train attached to the engine south of the crossing, and 7 cars, that witness had cut off, north of the crossing, and there were more cars north of them. They were going to "shove" these 18 cars on track No. 7 north to make room, and they shoved over all the cars that witness thought the track would hold north of the crossing. Witness then pulled the pin between the eleventh and twelfth cars. The cars were then moving very slowly onto the crossing. He gave the engineer a signal to stop, — to reverse the engine, and stop the cars that were attached to it, — and that as he did that the cars that he cut off came in contact with the north end of track No. 7, and stopped, but did not clear the crossing plank, leaving a space of 18 inches or 2 feet. Witness was standing at this time a little south of the center of the cars, about 15 feet from the opening. The switchman, Barrett, was standing about 10 feet due south of witness. After witness discovered that the cars had only made an opening of about 2 feet, instead of making an opening, as he intended, of about 30 feet, so as to make a passway for teams, he gave the engineer a signal to back up again, so as to make an opening the width of the crossing planks for teams to pass over. The engineer obeyed his signal to back up, moved the cars north, and witness then heard a man halloo, and saw a man's leg hanging between the cars. At the time, he thinks, he was looking at the opening between the cars. He was standing on the west side of the opening,...