14 S.W. 15 (Mo. 1890), Hudson v. Wabash Western Railway Co.

Citation:14 S.W. 15, 101 Mo. 13
Opinion Judge:Sherwood, J.
Party Name:Hudson v. The Wabash Western Railway Company, Appellant
Attorney:H. S. Priest for appellant. S. P. Galt for respondent.
Judge Panel:Sherwood, J. Ray, C. J., and Brace, J., concur; Black and Barclay, JJ., dissent.
Case Date:May 19, 1890
Court:Supreme Court of Missouri

Page 15

14 S.W. 15 (Mo. 1890)

101 Mo. 13



The Wabash Western Railway Company, Appellant

Supreme Court of Missouri

May 19, 1890

Appeal from St. Louis City Circuit Court. -- Hon. George W. Lubke, Judge.


H. S. Priest for appellant.

(1) The objection to the introduction of evidence, and the demurrer at the conclusion of the evidence, should have been sustained, because of the absence of causal connection between the acts of negligence charged in the petition, or proven, and the injuries which the plaintiff sustained. Stillson v. Railroad, 67 Mo. 671; Brown v. Railroad, 20 Mo.App. 222; Henry v. Railroad, 46 Mo. 293; Clark v. Railroad, 39 Mo. 619; Wyatt v. Railroad, 6 Best & Smith, 709; Wharton on Negligence, secs. 134, 138 and 200; Patterson's Railway Law, pages 18, 23, secs. 22, 23; Railroad v. Trich, 34 Am. & Eng. R. R. Cases, 549; Dahlstrom v. Railroad, 8 S.W. 777. (2) The demurrer to plaintiff's evidence should have been sustained, because of his contributory negligence. Lewis v. Railroad, 38 Md. 588; Railroad v. Dewey, 26 Ill. 255; Railroad v. Pinchin, 31 Am. & Eng. R. R. Cases, 428; s. c., 112 Ind. 592; Smith v. Railroad, 55 Iowa 33; O'Mara v. Railroad, 18 Hun. 192; Railroad v. Copeland, 61 Ala. 376; Gahagan v. Railroad, 1 Allen, 187; Stillson v. Railroad, 67 Mo. 617. (3) Plaintiff's instruction number 1 was erroneous. One event may follow on account of another, or one may lead up to another and give occasion to it, yet in no legal sense be a cause. (4) The court erred in giving instruction number 3 of plaintiff's series, because the petition alleged that the injuries were occasioned "without any fault on his part." The answer denied this averment, and thus the issue of plaintiff's contributory negligence was raised. Karle v. Railroad, 55 Mo. 482; Marshall v. Ins. Co., 43 Mo. 586; Hotel Co. v. Sauer, 65 Mo. 286; 1 Chitty Pl. [16 Ed.] top p. 252, bottom p. 325; Suddington v. Shearer, 20 Pickering, 477; Jerome v. Whitney, 7 Johnson, 321; Comr. v. Brevard, 1 Brevard, 11; Compf v. Morrell, 111 Ind. 370; Calvo v. Davies, 73 N.Y. 211. (5) Instructions numbers 2, 3 and 4 of defendant's refused instructions should have been given. They properly withdrew from the consideration of the jury those sections of the ordinance pleaded, which it was not even pretended had any causal efficacy in producing plaintiff's injuries. In reaching a verdict the jury had a right to consider all evidence admitted and not withdrawn. They may have regarded these sections as very material in determining defendant's liability. (6) The court erred in the admission of testimony against defendant's objections: First, in permitting the plaintiff to state whether he was notified that the cars were going to move. There was no legal duty to so notify plaintiff, nor were there any facts and circumstances proven which created such a duty. It was not alleged in the petition that any servant of the defendant saw or knew that plaintiff was in the act of crossing between the cars, but, upon the contrary, plaintiff's testimony proves most conclusively that no servant of the railway company was within his view.

S. P. Galt for respondent.

(1) Plaintiff's instruction number 3 is the law. Contributory negligence is an affirmative defense, and must be pleaded by defendant to be available. O'Connor v. Railroad, 94 Mo. 155; Donovan v. Railroad, 89 Mo. 147; Thorpe v. Railroad, 89 Mo. 651; Petty v. Railroad, 88 Mo. 306; How v. Hunt, 13 West. Rep. 698; Buesching v. Gaslight Co., 73 Mo. 233; Thompson v. Railroad, 51 Mo. 190. Defendant relies on Karle v. Railroad, 55 Mo. 482; but that question was not in controversy in that case, and the extract quoted from the opinion therein was ill-considered and is not the law. On the trial defendant admitted that the defense of contributory negligence was not in the case and raising the question on appeal is an afterthought. (2) If there was error in the giving of plaintiff's instruction number 3 it would be no ground for reversal, as there was no testimony in the case tending to prove contributory negligence on the part of the plaintiff. It was not negligence for the plaintiff, knowing that the train had obstructed the track for more than five minutes, and knowing that there was no watchman or brakeman there as required by law, to believe that they would not move the train without notice, and act accordingly. Moberly v. Railroad, 17 Mo.App. 542; Kellogg v. Railroad, 26 Wis. 223; Johnson v. Railroad, 77 Mo. 551-2; Buesching v. Gaslight Co., 73 Mo. 232; Barton v. Springfield, 110 Mass. 131; Snow v. Provincetown, 120 Mass. 580; Smith v. The City of St. Joseph, 45 Mo. 449; Thompson on Neg., pp. 1203-1206; Shearman & Redfield on Neg., sec. 4-4. (3) The acts of negligence charged in the petition -- the violations of the ordinance, and after so violating it and when so violating it, moving the train without any notice or warning to plaintiff -- did cause the injuries, or directly contributed thereto, for, without those acts, the injuries would not have been received. The violations of the ordinance were negligence per se. Boggs v. Railroad, 18 Mo.App. 278; Backenstoe v. Railroad, 23 Mo.App. 156; Karle v. Railroad, 55 Mo. 483; Johnson v. Railroad, 77 Mo. 552. (4) Defendant's instruction 2 is erroneous, because, first, there is no complaint in the petition that the watchman "did not display a red flag," but the complaint in that regard is, that there was no watchman there at all; second, the watchman is provided for the protection from moving trains of every person going along the street, including even the person who would pass through the train, who has waited so long as under the law he has any reason to believe that there is any probability of the obstructing train moving; in other words, if a person, in attempting to pass through a train, is using ordinary care and caution (which question is for the jury), then he is not without the protection of the law, and the safeguards provided by the ordinance should be observed for his protection, and it is negligence per se not to do it. (5) Defendant's instruction 3 is erroneous. Moberly v. Railroad, 17 Mo.App. 542. (6) The defendant's instruction 4 is erroneous, and open to all the objections urged supra to instructions 2 and 3, except the last objection supra. (7) Plaintiff's instruction number 1 is the law. We might justly have claimed before the jury, by instructions, the rights of recovery upon all the violations of the ordinance set out in the complaint and proven but we rested our right in the instruction given solely upon the issue "that then and there at the crossing there was no watchman of the defendant, and said cars were moved without any warning or signal of any kind being given that they were going to move, and the jury further believe that on that account plaintiff was injured." Karle v. Railroad, 55 Mo. 483; Boggs v. Railroad, 18 Mo.App. 278; Johnson v. Railroad, 77 Mo. 552; Moberly v. Railroad, 17 Mo.App. 542; Buesching v. Gaslight Co., 73 Mo. 232-233.

Sherwood, J. Ray, C. J., and Brace, J., concur; Black and Barclay, JJ., dissent.


[101 Mo. 18] Sherwood, J.

-- This cause has been transferred to this court under the provisions of section 6 of the constitutional amendment respecting such transfers. The action is for damages caused by injuries to plaintiff.

The petition, after certain recitals as to the defendant being a railroad corporation, sets forth certain ordinances of the city, then states:

"That on the said eighth day of November the defendant, unmindful of its duties in that regard, did, by its servants, carelessly and negligently, and in violation of said sections 1234, 1235, 1237 and 1239, commit the following acts, to-wit:

"It did obstruct a street crossing, to-wit, Montgomery street, of said city, by permitting freight cars, propelled by steam power, to stand thereon longer than five minutes, and did not cause the bell of the engine to be constantly sounded when moving said cars at the place and time aforesaid, and did then and there back said cars, and did not have a man stationed on top of the car at the end of said cars, the same being a train of cars, farthest from the engine, to give danger signals, and did then and there move said train of freight cars without it being well manned with experienced brakemen at their posts, and so stationed as to see the danger signals and hear the signals from the engine, if any should be made; and did, then and there, by its servants in charge thereof, run its cars in said city across [101 Mo. 19] said street, the same being an improved street, as provided in said sections 1234, 1235 and 1237, without any watchman being then and there stationed, as provided for in said sections 1234 and 1235, who might have warned, as it would have been his duty to do, the plaintiff of his danger of being injured, as he then and there was, as hereinafter stated, and defendant did then and there, after having left its cars standing across said street as aforesaid more than five minutes, negligently move the same without any notice or indication to plaintiff that it was going...

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