Hanlon v. Missouri Pac. Ry. Co.

Citation16 S.W. 233,104 Mo. 381
PartiesHANLON v. MISSOURI PAC. RY. CO.
Decision Date19 May 1891
CourtUnited States State Supreme Court of Missouri

2. In an action against a railroad company for personal injuries sustained by the collision of defendant's engine with a wagon on which plaintiff was riding it appeared that the wagon was standing partly on defendant's tracks on a highway, and that the engine came up from behind a distance of 1,000 feet at three miles an hour, and that plaintiff could have seen it if he had looked behind him; but it also appeared that the engineer saw the wagon in ample time to have stopped the train. Held, that plaintiff could recover, notwithstanding his contributory negligence.

3. An allegation that defendant negligently managed its train warrants evidence to prove its negligence in not stopping the train after its employes saw plaintiff on the track.

4. Testimony of the physician who examined plaintiff after the accident, that he found evidence of compression of the chest, and pneumonia arising therefrom, is sufficient to go to the jury on the question whether the disease with which he is suffering at the trial, and which was superinduced by pneumonia, is the result of the accident.

5. Where the evidence tends to show that plaintiff was confined to his house for three weeks; that both of his sides were compressed, resulting in pneumonia; that up to the time of the trial he was unable to work, and suffered continual pain, and that the injury may be permanent, — a verdict for $5,000 will not be disturbed.

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

B. Pike, for appellant. D. P. Dyer, for respondent.

MACFARLANE, J.

This is a suit for personal injuries sustained by plaintiff under the following circumstances: Plaintiff was in the employ of John O'Brien, who was a manufacturer of boilers and sheet-iron goods in St. Louis. On December 13, 1887, plaintiff, with Murphy and Dickson, two other employes of O'Brien, were sent with a smoke-stack about 20 feet long and 3 feet in diameter from the factory on the corner of Main and Biddle streets to the depot of the Iron Mountain Railroad. The smoke-stack was loaded upon a wagon drawn by one mule. Murphy drove. Dickson rode on the front end of the wagon with the driver, and plaintiff on the back end of the smoke-stack. Along the levee, running north and south, are located the tracks of the Iron Mountain Railway, four in number. Poplar street runs east and west and intersects the levee. The next parallel street south of Poplar is Plum, the second Cedar, and the third Gratiot. The distance from Poplar to Gratiot street is about 1,000 feet. Spruce street runs also east and west, and intersects the levee north of Poplar street. Poplar street extends west to the Union Depot, and upon this street defendant company has a track connecting its road with that of the Iron Mountain and the elevators on the levee. The Iron Mountain depot or platform is east of the tracks on the levee. The mule and wagon were driven down Spruce street to the levee, and had proceeded to within about 20 feet of the north line of Gratiot street, when an engine on one of the railroad tracks was observed meeting them from the south. The wagon was stopped, and the engine also stopped a short distance in front of the wagon. At Gratiot street it was the intention of those in charge of the wagon to cross the tracks of the railroad, that being the most direct route to the point to which they were going. The wagon was kept standing either on or very near the west track a few minutes to see if the engine in front of it would get out of the way. The engine remaining stationary, the driver of the wagon concluded to change his route, and turn up Gratiot street. The distance between the curbing on the corner of Gratiot street and the first rail of the railroad track to the east was five feet. The wagon had been standing on this space, with possibly one wheel over the rail. Owing to the projection of the smoke-stack to the rear of the wagon the driver thought it necessary, in order to make the turn into Gratiot street, to pull first a little to the left, which brought the wagon over the first rail of the track. Plaintiff, sitting on or in the rear end of the smoke-stack, had been giving his attention to the engine in front of him, as also had the two men in the front end of the wagon. While standing, none of them had looked back north to ascertain whether engines or trains were approaching from that direction. About the time the wagon passed over the rail some one in front of the wagon called to plaintiff and the other two men on it to jump or they would be killed. On looking back an engine drawing a train of 20 freight-cars was discovered coming south on the first track nearly upon the wagon. Plaintiff jumped about the time the train collided with the wagon, from which he received the injuries for which he sues. Plaintiff and his companions all testify that the bell on the engine that struck the wagon was not ringing. The evidence tended to prove that when the freight train turned from Poplar street onto the levee the wagon was noticed by the engineer in charge, standing close by or upon the track; that the train was running at the rate of three miles per hour, and could have been stopped within the space of 200 feet. The engineer and fireman both testified that the bell on the engine was ringing continuously from the time it started on Poplar street until the collision. The petition charged negligence in the manner in which the engine and cars were managed and moved. It also charged negligence in its failure to have a watchman stationed at the intersection of Gratiot street and the levee; in its failure to display proper signals at the intersection of said streets; in running said train at a greater rate of speed than six miles per hour; and in its failure to ring the bell on its engine continuously, — all alleged to be in violation of the requirements of certain ordinances of the city. Defendant's answer was a general denial and a plea of contributory negligence. The reply denied contributory negligence.

1. At the close of all the evidence defendant asked the court to instruct the jury that the evidence was not sufficient, under the pleadings, to authorize a verdict for plaintiff. This the court refused, and defendant now insists that it committed error in not doing so. There was no evidence that the train which collided with the wagon was running at a rate of speed in excess of six miles per hour, nor that the collision occurred by reason of a failure to keep a watchman at the intersection of Gratiot sreet with the levee; and therefore the charges of negligence in regard to the speed of the train, and the duty to keep a watchman and give signals at street intersections, were not sustained, and are eliminated from the case. No instructions were asked or given on the hypothesis of negligence in these particulars, and we may assume that these charges were abandoned. We are then only to determine whether there was evidence tending to prove the remaining charges, and, if so, whether there was such concurring negligence on the part of plaintiff as would defeat his recovery notwithstanding the negligence of defendant. The ordinance required the bell on a moving engine to be rung continuously, and it is well settled that a failure to observe such reasonable and wholesome requirements constitutes negligence in itself. Karle v. Railway Co., 55 Mo. 477; Murray v. Railway Co., 101 Mo. 236, 13 S. W. Rep. 817. Such negligence alone will warrant a recovery when it appears that obedience to the requirements of the ordinance would have prevented the injury, but not otherwise. Karle v. Railway Co., 55 Mo. 482; Zimmerman v. Railway Co., 71 Mo. 476; Barkley...

To continue reading

Request your trial
114 cases
  • Cheek v. Prudential Ins. Co.
    • United States
    • Missouri Supreme Court
    • December 1, 1916
    ...for which a recovery may be had by any person injured by reason thereof. To the same effect are the following cases: Hanlon v. Mo. Pac. Ry. Co., 104 Mo. 381, 16 S. W. 233; Graitiot v. Railway Co., 116 Mo. 450, 21 S. W. 1094, 16 L. R. A. 189; Karle v. Railway Co., 55 Mo. 476; Easley v. Railr......
  • Devine v. Kroger Grocery & Baking Co.
    • United States
    • Missouri Supreme Court
    • May 5, 1942
    ...(2d) 825; Davis v. Independence, 330 Mo. 201, 49 S.W. (2d) 95; Scanlon v. Kansas City, 336 Mo. 1058, 81 S.W. (2d) 939; Hanlon v. Mo. Pac. Ry. Co., 104 Mo. 381, 16 S.W. 233; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13, 157 S.W. 644; Sang v. St. Louis, 262 Mo. 454, 171 S.W. 347; Hutchcraft v. Lacled......
  • Morris v. Union Depot Bridge & Terminal R. Co.
    • United States
    • Missouri Supreme Court
    • June 21, 1928
    ... ... Union Depot Bridge & Terminal Railroad Company, Appellant No. 25936 Supreme Court of Missouri June 21, 1928 ...           Appeal ... from Jackson Circuit Court; Hon. Samuel A. Dew ... in the petition. McManamee v. Mo. Pac. Ry. Co., 135 ... Mo. 440; Chitty v. Ry. Co., 148 Mo. 64. (c) The ... negligence submitted in ... 276; Malloy v. Ry. Co., 173 Mo ... 85; State v. McGinnis, 158 Mo. 105; Hanlon v ... Mo. Pac. Ry. Co., 104 Mo. 381; Bond v. Ry. Co., ... 288 S.W. 777; Stein v. Rainey, ... ...
  • Jackson v. Kansas City, Fort Scott and Memphis Railroad Company
    • United States
    • Missouri Supreme Court
    • June 30, 1900
    ... ... KANSAS CITY, FORT SCOTT AND MEMPHIS RAILROAD COMPANY, Appellant Supreme Court of Missouri, Second Division June 30, 1900 ...           Appeal ... from Howell Circuit Court. -- ... Railroad, 101 Mo. 236, 13 S.W. 817; Drain v ... Railroad, 86 Mo. 574; Hanlon v. Railroad, 104 ... Mo. 381, 16 S.W. 233; Dickson v. Railroad, 104 Mo ... 491, 16 S.W. 381; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT