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

• Decision Date: 19 May 1891
• Parties: Dlauhi v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

16 S.W. 281

105 Mo. 645

Dlauhi v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 19, 1891

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Reversed and remanded.

Bennett Pike and H. G. Herbel for appellant.

(1) The court erred in admitting the evidence offered by plaintiff relative to the distance at which an engine bell could be heard from the Fillmore street crossing. Marcott v Railroad, 49 Mich. 102; Hurt v. Railroad, 94 Mo. 260; Brown v. Road Co., 89 Mo. 153; Rosenheim v. Ins. Co., 33 Mo. 236; Rose v Bank, 91 Mo. 403; Weil v. Posten, 77 Mo. 288. (2) The court erred in overruling defendant's demurrers to plaintiff's evidence and to the whole case. (3) The court erred in refusing to give the instructions asked by defendant. (4) The court erred in giving the instructions asked by plaintiff. Guenther v. Railroad, 95 Mo. 296; Railroad v. Jordan, 10 Am. & Eng. R. R. Cases, 304; State v. De Bar, 58 Mo. 397; State v. Clark, 54 Mo. 34; State v. Binder, 38 Mo. 453; City v. Alexander, 23 Mo. 483; Terry v. Railroad, 89 Mo. 587; Davis v. Railroad, 89 Mo. 350; Nichols v. Winfrey, 79 Mo. 551. (5) The court erred in giving the instructions of its own motion. See authorities cited under fourth point, supra.

A. R. Taylor for respondent.

(1) The evidence of witnesses Englehardt and Vance Dlauhi, as to how far, under conditions as existed at the time of injury, they had heard bells on engines ring, was admissible as a fact and not opinion. (2) If the trial court had given instruction marked c for defendant, it would have been a ruling in conflict with an unbroken line of decisions of this court, among which may be mentioned Merz v. Railroad, 88 Mo. 672; Keim v. Railroad, 90 Mo. 321; Kelley v. Railroad, 95 Mo. 285-286; Eswin v. Railroad, 96 Mo. 295; Schlereth v. Railroad, 96 Mo. 515. (3) Instruction, numbered 1, given for plaintiff was not erroneous. Kelley v. Railroad, 95 Mo. 294. (4) In all cases where there is a violation by a railroad of a duty imposed by law, and a person injured thereby, who would not have been injured but for the violation of law by the railroad, then, notwithstanding the injured person may have been wanting in care, he may recover, the court holding, properly, that the injured person's reliance upon the performance of a duty imposed by law on the railroad misled him to his injury. Petty v. Railroad, 88 Mo. 319; Kelley v. Railroad, 95 Mo. 286; Eswin v. Railroad, 96 Mo. 295. (5) By the terms of the statute the alternative of sounding whistle is not applicable to a city, and, therefore, the cases of Terry v. Railroad, 89 Mo. 587, and Turner v. Railroad, 78 Mo. 580, have no relevancy to this discussion. (6) The last serious contention by appellant is that plaintiff's and the court's instructions are erroneous, because it does not appear that appellant's train ran north for eighty rods, or for that matter eighty rods, before reaching Fillmore street crossing at the time in question. In other words, it is argued that a part of the journey up from Robert avenue station to Fillmore street crossing may not have been in the city, and, therefore, whistling would have answered instead of ringing the bell.

OPINION

Gantt, P. J.

This is an action in which plaintiff, a boy fourteen years old, sues for damages sustained by him, from one of the trains of defendant, on the thirteenth of July, 1887. The petition charges negligence in the running of the train; the failure to have a watchman at the crossing of Fillmore street when the accident happened as required by ordinance; the failure to ring the bell as required by statute and city ordinance. Answer, general denial and plaintiff's contributory negligence.

The evidence shows that plaintiff lived in the block between Fillmore and Elwood streets in St. Louis, near the bank of the Mississippi river, east of the defendant's tracks, in the city of St. Louis; that he had lived there all his life, about one hundred yards from the station where the accident happened; that, on the afternoon that he received the injury, he came from his home to the crossing of defendant's tracks by Fillmore street. As he reached the crossing a freight train was moving south on the west track. There were three tracks across this street. There is a depot on the west side; a space of four to five feet between the east and the middle track, and about six feet between the middle and the west track. The accident occurred about seven o'clock in the afternoon, the time for the Carondelet accommodation to arrive from the south at this station. Standing on this middle track at this crossing, one can see two blocks south on defendant's track.

Plaintiff testified that when he was struck he was standing between the rails of the middle track on Fillmore street crossing with his foot on the west rail thereof; that he had been standing there about a minute, for the freight train to pass him; that when he came on the track he looked both ways and did not see any train. On cross-examination he modified this statement by saying that "he looked once as he stepped on the middle track, and then stood there watching the freight caboose go by." The bell on the freight train was ringing, and that train was making a great noise. He says no bell was ringing on the engine that struck him, but on cross-examination he says he didn't hear any bell ringing on the engine that struck him, and that it was not probable he would have heard it owing to the noise made by the freight train, which he was watching. The first intimation of danger he had was the whistle of the engine, just before it struck him. The train stopped at the usual stopping place. It was a passenger train of three coaches, and came from the south that afternoon. The train men all testify the bell was rung constantly that afternoon on the engine. Plaintiff's witnesses did not hear the bell rung. Plaintiff's brother testified it did not ring. Plaintiff himself says he did not hear it ring. The engineer testified that his train reached Fillmore street station twelve minutes past seven that afternoon. Had his train well in hand, running between three and four miles an hour; stopped the engine on the crossing. When he got near the crossing had applied the air so as to stop at the station, and was watching out, when he heard the fireman halloo, "Oh! Oh!" when he saw the boy fifteen or twenty feet ahead of his engine on the track. He sounded his whistle as soon as he saw him, and applied all the balance of his air to stop the train. Did not see plaintiff on the track until the fireman gave the alarm. The fireman and conductor both corroborated this account of the engineer. Sections 1234 and 1239, of article 5, revised ordinances of city of St. Louis, relating to ringing of bells by railway trains, were read in evidence. The plaintiff was badly lacerated, and his leg amputated.

The defendant demurred to the evidence, and its instruction was overruled. Defendant also asked, and the court refused, the following instruction: "If the jury find from the evidence that the defendant's passenger train called the 'Carondelet Accommodation' approached the defendant's station at the foot of Fillmore street at the time of the accident to plaintiff, at a low rate of speed, to-wit, four or five miles an hour, and that when the said train had approached to within thirty or forty feet of said station running at or about the rate of speed above mentioned, the plaintiff ran or went in front of said train when said train was within fifteen or twenty feet of him, and that defendant's agents in charge of the engine drawing said train after seeing said plaintiff on the track in front of said engine did all they could under the circumstances to stop said train and avert the accident at the time said plaintiff was struck, then they must find for the defendant."

Which said instruction the court refused to give to the jury; to which action of the court the defendant at the time duly excepted.

The court then at the instance of plaintiff gave the jury the following instructions: "1. If the jury should find from the evidence that the plaintiff, Louis Dlauhi, went upon defendant's north-bound track and stopped at a point on said track, where it crossed Fillmore street, to await the passage of one of defendant's trains upon its south-bound track, and that, whilst going upon said north-bound track and standing upon said track, said Louis did not look or listen for the approach of a train on said north-bound track, and that whilst upon said track he was struck and injured by the tender of an engine, and train propelled by steam power moving northward on said track; and if the jury further find from the evidence that said Louis did not exercise care according to his age and discretion in so going upon and standing upon said track without looking or listening for the approach of a train upon said track, yet if the jury further believe from the evidence that the bell on the engine of said train so moving north on said north-bound track was not sounded eighty rods from the crossing of Fillmore street, and not sounded at intervals until it crossed said street; and if the jury believe from the evidence that such failure to so sound said bell directly caused said injury to the plaintiff, then plaintiff is entitled to recover, and your verdict should be returned in his favor.

"2. If the jury believe from the evidence that the plaintiff Louis Dlauhi, whilst upon Fillmore street in the city of St. Louis at the point where said street was crossed by defendant's railway track, was struck and injured by the tender attached to defendant's locomotive and train propelled by steam power; and if the jury further believe...