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 from said O'Brien's place of business to the Iron Mountain depot, which was on the levee, a short distance below Gratiot street, and for this purpose was being driven southwardly down the west side of the levee in said city. Murphy sat in front and did the driving, while the plaintiff and Hanlon sat on the smokestack, the plaintiff at the front, and Hanlon at the rear, end.

While the wagon was being thus drawn south-wardly down the levee, and when it had come within a very few feet of the crossing of Gratiot street, an engine came from the south and stopped near that crossing. The levee was covered with quite a number of railroad tracks. The westernmost was that of the defendant. In driving down the levee to the Iron Mountain depot, a wagon would have to go along that side of the levee, which lay west of the track of the defendant. The space left to the west of the track, and in which the wagon would be driven, was forty feet wide for the most part, but narrowed towards Gratiot street, until at the corner of that street, on the north side, it was only five feet from the curbstone to the track. When Murphy saw this engine he stopped the [104 Mo. 496] wagon and he, plaintiff and Hanlon watched its movements. The engine finally stopped. When Murphy saw that, owing to the engine in front of him, he could not cross the levee as he had intended, he concluded to turn into Gratiot street, and proceeded to do so. In so doing, his wagon necessarily came upon the track, and was struck by the defendant's engine, which came from the north or rear of the wagon, and by this collision the plaintiff suffered injuries, and it is for these that he sued and recovered

Page 382

in this action. It is conceded that the evidence shows that defendant had no watchman at the crossing when and where the accident occurred. The ordinance referred to in the petition was read in evidence.

At the instance of plaintiff, the court instructed the jury as follows: "1. If the jury find from the evidence that Gratiot and First or Levee streets, where the two intersect, were improved on each and every side of the railroad tracks extending along said First or Levee street, by being macadamized or otherwise improved with such other material usually used in the construction or reconstruction of streets, then it because the duty of the defendant to station a watchman at the intersection of said streets, and a failure to do so would be negligence on its part, and, if you find that the injury complained of by plaintiff was caused by such negligence on the part of the defendant, then the plaintiff is entitled to recover in this action, if you further find from the evidence that neither the plaintiff nor the driver of the wagon on which he was then riding was guilty of such negligence as directly contributed to the accident that caused the injury.

"2. If the jury find from the evidence that the defendant's agents and servants in charge of the engine that struck the wagon upon which plaintiff was riding did not, while said engine was in motion, constantly sound the...

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