Clark v. St. Joseph Terminal R. Co.

• Decision Date: 20 May 1912
• Parties: CLARK v. ST. JOSEPH TERMINAL R. CO.
• Court: Missouri Supreme Court

148 S.W. 472

242 Mo. 570

CLARK v. ST. JOSEPH TERMINAL R. CO.

Supreme Court of Missouri.

May 20, 1912.

1. APPEAL AND ERROR (§ 361)—AFFIDAVIT OF APPEAL—SUFFICIENCY—CORRECTION BY NUNC PRO TUNC.

Where an affidavit of appeal did not show the name of the officer before whom it was made, the affidavit and the entry of allowance of the appeal were properly amended by a nunc pro tunc entry to show that the affidavit had been sworn to before the deputy clerk of the court upon evidence that such had been the case, though the judge who had made the original entry of allowance and the deputy clerk had died, and the clerk had gone out of office.

2. PLEADING (§ 64)—DUPLICITY—SEVERAL ACTS OF NEGLIGENCE.

Several acts of negligence of the same general nature, all of which may be true, and either or all of which may have caused the injury, may be placed in one count of a petition, so that a petition in an action for injuries to a motorman on a street car struck by the defendant's train is not insufficient because alleging different acts of negligence producing the injury, even though one of them is negligence which occurred after the plaintiff had by his own negligence placed himself in a position of peril.

3. RAILROADS (§ 297)—INJURIES TO PERSONS ON TRACKS — ACTIONS — PLEADING—SUFFICIENCY.

A petition in an action for injuries to a motorman on a street car struck by the defendant's train, which charges that the defendant carelessly and negligently failed to apply an air brake or use any means whatsoever to stop the train after discovering that there was danger of a collision, and that, by reason of such act of negligence, the train struck the street car and injured such motorman, sufficiently charges the negligence of the defendant under the doctrine of the "last clear chance."

4. RAILROADS (§ 295)—INJURY AT CROSSING —CONTRIBUTORY NEGLIGENCE — VIOLATION OF STATUTE.

The constant violation of a statute providing that street railways must stop their cars

not less than 10 nor more than 20 feet from a railway crossing will not repeal the statute nor relieve the motorman of a street car, who violated it by running his car over the tracks, from being guilty of negligence per se in so doing.

5. RAILROADS (§ 297)—INJURY AT CROSSING — CONTRIBUTORY NEGLIGENCE — VIOLATION OF STATUTE.

In an action for injuries to a motorman of a street car struck by a train, evidence held to show that the plaintiff was guilty of both statutory and actual negligence in his management of his car.

6. RAILROADS (§ 297)—INJURY AT CROSSING.

In an action for injuries to a motorman, when the car he was in charge of was struck by a train, evidence held sufficient to sustain a finding that the defendant was guilty of negligence causing the injury sufficient to support a finding for the plaintiff, even though he himself was guilty of contributory negligence.

7. RAILROADS (§ 295)—INJURY AT CROSSING —NEGLIGENCE—DUTY OF STREET CAR MOTORMAN — STATUTORY REQUIREMENTS — DEGREE OF CARE NECESSARY.

Under a statute providing that street cars shall be stopped not less than 10 nor more than 20 feet from a railroad crossing, the highest degree of care is imposed for the obedience of the mandate, so that a motorman who exercised ordinary care in moving his street car across railway tracks was still guilty of contributory negligence in not exercising the highest degree of care required.

8. RAILROADS (§ 295)—INJURY TO PERSONS ON TRACK — CONTRIBUTORY NEGLIGENCE — NEGLIGENCE PER SE.

Where a motorman, injured when his car was struck by a train, did not have his car under such control as would enable him to stop it within the proper distance from a railroad track, and could have seen an approaching train in time to have stopped the car, he was guilty of negligence in his failure to see the train as a matter of law, and an instruction submitting the question of his negligence to the jury was improperly given.

9. TRIAL (§ 191)—INSTRUCTIONS—ASSUMPTION OF CONTROVERTED FACTS.

Instructions should never assume as true facts about which there is a controversy.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Buchanan County; H. M. Ramey, Judge.

Action by Harry B. Clark against the St. Joseph Terminal Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

R. A. Brown and Thomas R. Morrow, for appellant. J. W. Boyd and James Moran, for respondent.

GRAVES, P. J.

Plaintiff sued the St. Joseph Terminal Railroad Company and the St. Joseph Union Depot Company in the circuit court of Buchanan county to recover compensation for injuries alleged to have been sustained by him because of the negligence of said companies. At the conclusion of the evidence introduced at trial, plaintiff took a nonsuit as to the Union Depot Company. Verdict was returned in the sum of $11,400 against the Terminal Railroad Company and judgment rendered in that amount, from which judgment said Terminal Railroad Company appeals to this court.

Plaintiff was on the 28th day of September, 1901, in the employ of the St. Joseph Railway, Light, Heat & Power Company as a motorman, and as such was in charge of one of said company's trains of street cars then being operated over Sixth street in the city of St. Joseph. There were two street car tracks running north and south along Sixth street. Cars running north ran over the east street car track and cars running south ran over the west track. Just north of Monterey street, which crosses Sixth street, four railway tracks cross Sixth street in close proximity to each other. The first railway track north of Monterey street belonged to the St. Joseph Terminal Railroad Company; the second track belonged to the Chicago, Rock Island & Pacific Railroad Company; the third track belonged to the Chicago, Burlington & Quincy Railroad Company; and the fourth or north track belonged to the St. Joseph Union Depot Company. A plat or blueprint map of this portion of Sixth street was introduced in evidence by plaintiff, and by it the distance between the Terminal Railroad Company track and the Rock Island track is shown to be a little more than 12 feet; the distance between the Rock Island track and the Burlington track is a little more than 40 feet, and the distance between the Burlington track and the Union Depot Company track is a little more than 105 feet, such distances being measured along the east rail of the east street car track. The Union Depot Company track crosses the street diagonally in a direction from northeast to southwest. While the distance from the Burlington track to the Union Depot Company track measured along the east rail of the east street car track is a little over 105 feet, the distance along the west rail of the east street car track is only a little over 99 feet. Plaintiff claims these distances to be a fraction less than those shown by the plat, a matter to be fully noted in the opinion.

From the street car tracks, the Union Depot Company track curves into a northerly direction to its terminus at the Union Depot Building, a few hundred feet north and situated on the east side of Sixth street. There was situated on the east side of Sixth street and between the Union Depot Company track and the Burlington track a watchman's or flagman's house. This house was 30 or 35 feet southeast of the point where the east rail of the east street car and the south rail of the Union Depot Company track crossed, as appears from the plat in evidence. Plaintiff's Exhibit C and defendants' Exhibit B, two photographs evidently taken from a different viewpoint, tend to illustrate this situation, and for that reason are here inserted.

PLAINTIFF'S EXHIBIT C.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

DEFENDANT'S EXHIBIT B.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

A visual examination of the plat heretofore mentioned serves more clearly to fix the location and surroundings heretofore described, and for that reason said plat is also set out.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the date above mentioned, plaintiff was acting as the motorman of one of the cars of the St. Joseph Railway, Light, Heat & Power Company operating over the Sixth street tracks. He was standing on the front platform of a car which was the usual and customary place for the motormen to stand in the performance of their duties. Attached behind this car was a second car called a trailer. These cars were being propelled north across Sixth street and on the east track. When they came within a few feet of the Terminal Railroad Company track, the first one to cross when going north, plaintiff stopped the cars. At that time a switch engine and a number of freight cars were passing along Sixth street on said Terminal Railroad Company track. As soon as the engine and cars had passed, the plaintiff started his cars and crossed the first three tracks. Plaintiff testified that after crossing the third, or Burlington track, he looked northeast to see if a Burlington train was approaching.

A few minutes before this a Santa Fé passenger train, consisting of two passenger cars, a baggage car, and an engine, had arrived at the Union Depot. The passengers had disembarked and the baggage had been unloaded, and the train crew with the exception of the engineer and fireman had left the train. This train came into the Union Depot at about this time every day; such depot being the end of its run from North Lexington, Mo. After the passengers had disembarked and the baggage had been unloaded, the train was backed out of the said Union Depot over the Union Depot Company track heretofore mentioned over and across Sixth street and across the street car tracks mentioned and over other tracks and streets to the terminal yards. The evidence shows that it was the customary practice for an employé of the Terminal Railroad Company, called a hostler or pilot, to take up a position upon the rear platform...