16 S.W. 381 (Mo. 1891), Dickson v. Missouri Pac. Ry. Co.

Citation:16 S.W. 381, 104 Mo. 491
Opinion Judge:Thomas, J.
Party Name:Dickson v. The Missouri Pacific Railway Company, Appellant
Attorney:B. Pike for appellant. D. P. Dyer for respondent.
Case Date:May 19, 1891
Court:Supreme Court of Missouri
 
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Page 381

16 S.W. 381 (Mo. 1891)

104 Mo. 491

Dickson

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 19, 1891

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

Affirmed.

B. Pike for appellant.

(1) Defendant's demurrers to the evidence, at the close of the plaintiff's case and at the close of the whole evidence, should have been given. Matti v. Railroad, 32 Am. & Eng. R. R. Cases, 73; Railroad v. Davis, 32 Am. & Eng. R. R. Cases, 65; Henze v. Railroad, 71 Mo. 638; Gurley v. Railroad, 93 Mo. 450; Rafferty v. Railroad, 91 Mo. 37; Harty v. Railroad, 95 Mo. 368; Field v. Railroad, 76 Mo. 616; Braxton v. Railroad, 77 Mo. 458; Collins v. Railroad, 65 Mo. 232; Waldheir v. Railroad, 71 Mo. 514; Collins v. Railroad, 65 Mo. 230; Cooley on Torts, 679; Shear. & Red. on Neg., sec. 488. (2) the court committed error in admitting testimony as to there being no watchman at the foot of Gratiot street, and no flag displayed there at the time of the accident. Railroad v. Goran, 31 Am. & Eng. R. R. Cases, 170. (3) The instructions given at the instance of plaintiff were erroneous. Stoher v. Railroad, 91 Mo. 518; Dowling v. Allen, 88 Mo. 299; Cooley on Torts, 679; Shearman & Red. on Neg., sec. 488, and cases cited under first point. (4) The court erred in refusing the instructions asked by defendant.

D. P. Dyer for respondent.

(1) The position taken by the appellant, that the jury were legally bound to find that the bell on the engine of the appellant was being constantly rung, is without merit. Murray v. Railroad, 101 Mo. 236, 242. (2) The facts of the case do not conclusively establish contributory negligence on the part of either the driver or of the plaintiff; they do not even establish prima facie proof of such negligence. But, if the driver had been negligent, the plaintiff would not have been affected thereby. Beck v. Railroad, 13 S.W. 1053, and cases cited; Land Co. v. Mingea, 89 Ala. 521, and cases cited; Mills v. Armstrong, L. R. 13 App. 1; Borough of Carlisle v. Brisbane, 113 Pa. St., pp. 552, 553. (3) The levee or First street and Gratiot street were cross or intersecting streets within the meaning of the ordinance. Wilkins v. Railroad, 101 Mo. 93. (4) The facts which rendered these streets cross or intersecting streets were established by uncontroverted evidence, and by the appellant's and the respondent's witnesses; they were assured and tacitly conceded by the counsel on either side; and the court could, therefore, with propriety, assume the existence of them. Bank v. Hatch, 98 Mo. 376; Walter v. City, 99 Mo. 647; Pope v. Kansas City, etc., Co., 99 Mo. 400. Indeed, the court might probably have taken judicial notice of these facts in the absence of evidence. Brady v. Page, 59 Cal. 52; State v. Ruth, 14 Mo.App. 228; Pearce v. Longfit, 101 Pa. St. 512. (5) The evidence sufficiently showed that the absence of the watchman was the proximate cause of the injury. Murray v. Railroad, 101 Mo. 236, 242; Wilkins v. Railroad, 101 Mo. 103. Indeed, the jury were bound so to find. Schlereth v. Railroad, 96 Mo. 509. (6) It was not necessary for the plaintiff to plead that defendant's engineer saw, or by the exercise of reasonable care could have discovered, the plaintiff's peril in time to have averted the injury. That matter could be shown to obviate contributory negligence on the part of the plaintiff without being pleaded, and the evidence was used only for that purpose. Kellny v. Railroad, 101 Mo. 75; Hilz v. Railroad, 101 Mo. 56. And, if it had been necessary to plead it, the defendant is not in a position to avail itself of any failure of the plaintiff to plead it. Hilz v. Railroad, 101 Mo. 41. And, finally, in case it had been necessary to plead such default on the part of the engineer, the allegations of the plaintiff's petition are sufficiently broad to have rendered the claim available. Sullivan v. Railroad, 97 Mo. 113.

OPINION

[104 Mo. 494] Thomas, J.

This is an action for personal injuries. Respondent obtained judgment in the circuit court of the city of St. Louis for $ 3,875, and the defendant has appealed.

The allegations of the petition with respect to the cause of the injuries complained of are, in the first place, that these injuries are attributable to the carelessness and negligence of the defendant, its servants and agents, in the negligent and careless manner in which the engine and cars were managed and moved. The petition further sets out, as causes of these injuries, the violation of ordinances of the city of St. Louis, which contain the following provisions, namely: First. That it shall not be lawful for a corporation to run cars propelled in whole or in part by steam along or across any improved street, unless such corporation shall station at each cross or intersecting street a watchman, who shall display at the crossing of cars in the daytime a red flag, and in the night time a red light. Second. That it shall be unlawful for an engineer to run any car or cars along or across such street, unless such watchman is stationed [104 Mo. 495] at each and every cross or intersecting street with said signals; and, third, that, whenever an engine shall be moving in said city, the bell of such engine shall be constantly sounded. The answer of defendant was a general denial, and a plea of contributory negligence on the part of plaintiff.

The facts are briefly these: The plaintiff and Francis Hanlon were in the employ of John O'Brien, whose place of business was at Main and Biddle streets, in the city of St. Louis. On December 13, 1887, they were on a wagon, which was in the charge of, and being driven by, John Murphy, a driver for O'Brien. To this wagon was fastened a smokestack, which was about twenty feet long, and thirty-six inches in diameter, and the wagon was taking the plaintiff, Hanlon and the smokestack...

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