Hilz v. Missouri Pacific Railway Co.

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

13 S.W. 946

101 Mo. 36

Hilz v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

May 19, 1890

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

Affirmed.

Thomas J. Portis and B. Pike for appellant.

(1) Plaintiff's testimony did not make a prima facie case and the demurrer to the evidence should have been sustained. Damrill v. Railroad, 27 Mo.App. 202; Powell v Railroad, 76 Mo. 80; Railroad v. Hammet, 32 Am. & Eng. R. R. Cases, 128; Young v. Railroad, 107 N.Y 500; Harlan v. Railroad, 64 Mo. 480; s. c., 65 Mo. 22; Flitch v. Railroad, 64 Mo. 484; Henz v. Railroad, 71 Mo. 626; Zimmerman v. Railroad, 71 Mo. 476; Lenix v. Railroad, 76 Mo. 86; Stepp v. Railroad, 85 Mo. 229; Purl v. Railroad, 72 Mo. 168; Hickson v. Railroad, 80 Mo. 335; Taylor v. Railroad, 86 Mo. 457; Bell v. Railroad, 72 Mo. 80; Moody v. Railroad, 68 Mo. 470. (2) The court committed error in refusing to give the instructions asked by defendant. Lenix v. Railroad, 76 Mo. 86. (3) The instructions given by the court upon his own motion were erroneous. Gurley v. Railroad, 93 Mo. 450; Rafferty v. Railroad, 91 Mo. 37; Ischer v. Bridge Co., 95 Mo. 261; Harty v. Railroad, 95 Mo. 368; Dahlstrom v. Railroad, 8 S.W. 777; Edens v. Railroad, 72 Mo. 212; Waldheir v. Railroad, 71 Mo. 514; Buffington v. Railroad, 64 Mo. 246; Rine v. Railroad, 88 Mo. 400; Kendrick v. Railroad, 81 Mo. 520; Wood v. Railroad, 58 Mo. 115; Stephens v. Railroad, 86 Mo. 227.

D. P. Dyer for respondent.

(1) The defendant is liable, notwithstanding the contributory negligence of the plaintiff's husband, provided that its engineer could have seen the danger in which plaintiff's husband had placed himself, and could thereupon have averted the injury. The refusal of the circuit court to nonsuit the plaintiff, and the submission of the cause to the jury under the instruction given was, therefore, proper. Guenther v. Railroad, 95 Mo. 286; Dunkman v. Railroad, 95 Mo. 232; Sullivan v. Railroad, 97 Mo. 113; Bergman v. Railroad, 88 Mo. 678; Welsh v. Railroad, 81 Mo. 466; Frick v. Railroad, 75 Mo. 595; Harlan v. Railroad, 65 Mo. 22. The evidence of plaintiff is sufficient to establish a case, but, if it were otherwise, that of defendant would also have to be considered. McPherson v. Railroad, 97 Mo. 253; Bowen v. Railroad, 95 Mo. 268; Guenther v. Railroad, 95 Mo. 286. (2) The allegations of the petition were sufficient to sustain the submission of the cause to the jury on this theory if timely objection thereto had been made. Sullivan v. Railroad, 97 Mo. 113; Neier v. Railroad, 12 Mo.App. 35; Otto v. Railroad, 12 Mo.App. 168; Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad, 75 Mo. 295; Ellet v. Railroad, 76 Mo. 518; Coudy v. Railroad, 85 Mo. 79. (3) The point of appellant, that negligence at common law and negligence arising from violation of ordinances cannot be pleaded in the same count, is not well founded. Otto v. Railroad, 12 Mo.App. 174. But the question does not arise in the case at bar. Not having been raised in the trial court by demurrer or motion of any kind, it is not presented by the record. Bank v. Dillon, 75 Mo. 380; Blair v. Railroad, 89 Mo. 383; Hoyle v. Farquharson, 80 Mo. 377; Williamson v. Fisher, 50 Mo. 198; Baker v. Raley, 18 Mo.App. 562; Brown v. Railroad, 20 Mo.App. 427. (4) The appellant cannot complain of the theory upon which this cause was submitted to the jury, since it tried the case on that theory and asked for an instruction predicated thereon. Bettes v. Magoon, 85 Mo. 580; Thorpe v. Railroad, 89 Mo. 650; Noble v. Blount, 77 Mo. 235; Bank v. Hammerslough, 72 Mo. 274; Smith v. Culligan, 74 Mo. 387; Loomis v. Railroad, 17 Mo.App. 340.

Ray, C. J. Judges Black and Barclay concur; Judges Sherwood and Brace concur in the result.

OPINION

Ray, C. J.

-- Plaintiff brought this action in the circuit court of the city of St. Louis to recover damages for the death of her husband, Conrad Hilz, who was run over and killed by an engine and tender of defendant, at a certain crossing in said city, formerly called Pratt avenue, but designated, we believe, at this time, as Jefferson, or West Jefferson, avenue. She obtained a verdict and judgment for five thousand dollars, from which defendant has duly prosecuted this appeal.

A number of railroad tracks belonging to defendant and other railroads run east and west over said public crossing, which runs north and south. This crossing is depressed below the former grade of the street, and could not be used by vehicles on that account, but was used by pedestrians to a considerable extent, and, particularly, it would seem, at that time in the evening, and especially by workmen employed at the oil company's works, which adjoined the railroad tracks immediately on the south. The husband of plaintiff, who worked at said oil works, started north about six o'clock in the evening on September 3, 1886, and passed over three of said tracks, running, or hurrying, over the third track, on which a train, belonging to the St. Louis and San Francisco railroad, was then approaching the crossing from the west, and then stood on the fourth track from the south to let a train on the fifth track, belonging to the Wabash railroad, pass. Hilz was watching this Wabash train approaching from the west or northwest, and then very near the crossing, or, as some of the witnesses say, was watching the San Francisco train, and did not see the engine and tender, which came from the east, and which ran over and killed him.

It is not necessary to make any further statement, for the present, of said Hilz's movements and conduct on this occasion, as the trial court found that Hilz was guilty of contributory negligence, and so directed the jury. The case was tried upon that theory, and his contributory negligence was, and is, conceded in that court and in this. The petition, we may observe, contains a general allegation that the death resulted from the negligence and unskillfulness of defendant's agents and servants whilst managing and running the locomotive, and further states and sets up several provisions of the city ordinance alleged to have been violated, viz.: The neglect of the watchman to display at said crossing the signal required by the ordinance, running the engine in excess of six miles an hour, failure to sound the bell, and failure to have a man stationed on the tender to give danger signals.

The answer, besides the general denial, charges and sets up general contributory negligence on the part of the deceased husband. The testimony, we may observe, shows that the bell was ringing at the time, and there is no evidence to show that the watchman was delinquent and neglected to display his flag, as required by the ordinance. Section 26 of the ordinance set out in the petition, providing, in substance, that, if any cars or locomotive propelled by steam be moving within the city limits, a man shall be stationed on top of the car furthest from the engine, was, upon objection, excluded, and no evidence was offered in that behalf. In respect to the remaining provision of the ordinance set up and counted upon, requiring the rate of speed to be not in excess of six miles per hour, the evidence is conflicting, the plaintiff's witnesses, or some of them, putting it at ten miles an hour, whilst defendant's estimated it from four to six miles an hour. The only issue submitted to the jury was, substantially, whether or not the defendant's engine and tender were so far distant, or east, from said Hilz, when he stepped on the track, that the persons in charge thereof ought, in the exercise of ordinary care, to have discovered his peril, and have stopped in time to avoid injuring him.

The instruction given by the court of its own motion, being the only instruction given in the cause, so shows. It is perhaps desirable and best to set the same out in full, which we do as follows: "The court instructs the jury that a person who steps on a railroad track, over which engines and cars are accustomed to pass, is in duty bound to look up and down the track to see if any such cars or engines are approaching, and his failure to do so is negligence. In this case, the act of the deceased in stepping on defendant's track, on which the engine was backing, was a negligent act, and precludes a recovery, unless the evidence satisfies you that he stepped on said track when said engine was so far distant from him that the person in charge of said engine ought, in the exercise of ordinary care, to have discovered him, and the peril he was in, and then have stopped, and thus avoided running over him. The question which the court submits to you is whether deceased stepped on the track when the engine was so far east of him that the persons in charge of the engine ought, in the exercise of ordinary care, to have discovered that he was in peril, and might then have stopped the engine in time to avoid injuring him. If you answer this question in the affirmative, find for plaintiff in the sum of five thousand dollars. If you find that he stepped on the track when the engine was so near to him that the persons in charge of the same, in the exercise of ordinary care, did not have opportunity to discover his peril, and stop before running over him, then find for the defendant."

The point is made in this court for defendant that the petition does not authorize the submission of the issue so contained and submitted in said instruction. But, even if the objection would be sound and well taken in a proper case, the defendant, we apprehend, is in no position to urge the same in this court. Both parties, we think, tried the case upon the theory of this instruction. The defendant, it is true excepted to the giving of this instruction, but, so far as the...