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

• Citation: 18 S.W. 919,108 Mo. 525
• Parties: Dahlstrom v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Decision Date: 01 March 1892
• Court: United States State Supreme Court of Missouri

18 S.W. 919

108 Mo. 525

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

Supreme Court of Missouri

March 1, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

H. S Priest and H. G. Herbel for appellant.

(1) The insurmountable fact exists that respondent was struck by the car before he could traverse a space of five feet (the width of the track) at a brisk gait. To clear that distance required the taking of but two steps, as the step of the average man is from two and one-half to three feet. This circumstance, therefore, fixes with unerring certainty the close proximity of the car to respondent when he stepped upon the track. The assertion by respondent's counsel that his client was nearly over the track when struck is not supported by the record, as respondent's evidence clearly shows that he was struck by the car the instant he stepped upon the track; and the fact that his body was lying on the opposite side of the track is accounted for by his statement, that "when they strike I jump a couple of feet before I fall." (2) To merely "glance" in the direction of danger when it is too late to avoid it, is not the exercise of such care as the law requires in cases of this character. Warner v. Railroad, 21 A. 737; Harlan v. Railroad, 64 Mo. 482; Blight v. Railroad, 21 A. 995; O'Donnell v. Railroad, 7 Mo.App. 192; Artz v. Railroad, 34 Iowa 153; Clark v Railroad, 50 Mo. 433. In Butts v. Railroad, 98 Mo. 272, the injury occurred at a public crossing under circumstances precisely similar to those attending the Dahlstrom injury, and this court unhesitatingly pronounced Mrs. Butts guilty of such contributory negligence as barred her right of action, "notwithstanding the negligence of defendant in the operation and management of its train." To the same effect are this court's rulings in the analogous cases of Yancy v. Railroad, 93 Mo. 433; Stillson v. Railroad, 67 Mo. 671; Railroad v. Spearen, 47 Pa. St. 547; Houston v. Railroad, 95 U.S. 703; Cone v. Railroad, 14 W. Rep. 100; Goodlett v. Railroad, 122 U.S. 391; Schofield v. Railroad, 114 U.S. 615; Railroad v. Stroud, 64 Miss. 784; S. C., 31 Am. & Eng. R. R. Cases, 443; Peck v. Railroad, 50 Conn. 379; Wild v. Railroad, 24 N.Y. 430. (3) Whether or not defendant had a man on its train was immaterial to the issues of this case, as the failure to so have him could not have been the proximate cause of the injury. The vice of the first instruction given for plaintiff is incurable, because it assumes to cover the whole case and expressly refers to respondent's contributory negligence and erroneously defines its effect to the jury by telling them, that notwithstanding his contributory negligence he is entitled to recover if appellant failed to station a man on top of the rear car of its train. This court had occasion to condemn similar instructions in the cases of Guenther v. Railroad, 95 Mo. 296, and Dlauhi v. Railroad, 105 Mo. 653.

E. W. Pattison for respondent.

(1) The demurrer to the evidence was properly overruled, since defendant went into its own case, and the evidence as a whole made a case for the jury. Bowen v. Railroad, 95 Mo. 268; Guenther v. Railroad, 95 Mo. 286. Moreover plaintiff's testimony alone made out a prima facie case. Brown v. Railroad, 50 Mo. 461, 467; Petty v. Railroad, 88 Mo. 306; Kelly v. Railroad, 88 Mo. 548; Merz v. Railroad, 88 Mo. 667; Donohue v. Railroad, 91 Mo. 364; O'Connor v. Railroad, 94 Mo. 156; Schlereth v. Railroad, 96 Mo. 509; Eswin v. Railroad, 96 Mo. 297; Grube v. Railroad, 98 Mo. 330; Hilz v. Railroad, 101 Mo. 54; Kellny v. Railroad, 101 Mo. 67; Wilkins v. Railroad, 101 Mo. 106; Murray v. Railroad, 101 Mo. 242; White v. Railroad, 34 Mo.App. 57; Railroad v. Clough, 45 Am. & Eng. R. R. Cases, 137; Lyman v. Railroad, 45 Am. & Eng. R. R. Cases, 163; Massoth v. Canal Co., 64 N.Y. 529; Williams v. Railroad, 43 L. J. Eq. 105; Railroad v. Phillips, 112 Ind. 59. (2) There was no error in the action of the court below in refusing the first and fourth instructions asked by defendant, and in modifying the second and third. Maher v. Railroad, 64 Mo. 275; Werner v. Railroad, 81 Mo. 374; Keim v. Railroad, 90 Mo. 314; Dunkman v. Railroad, 95 Mo. 344; Kelly v. Railroad, 95 Mo. 284; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 330; Jennings v. Railroad, 99 Mo. 394; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 236; Hilz v. Railroad, 101 Mo. 54; Thompson on Negligence, pp. 420, 558, 1232; Pierce on Railroads, p. 350; Massoth v. Canal Co., 64 N.Y. 524. (3) The instructions given by the court properly expressed the law applicable to this case. Cases cited under previous heads; also, Railroad v. Miller, 29 Md. 252. The remarks of counsel in summing up the case furnish no ground for reversal. Huckshold v. Railroad, 90 Mo. 559.

IN BANC: Brace, J. Sherwood, C. J., dissents. IN BANC: Brace, J. All the judges concur, except Sherwood, C. J.

OPINION

IN BANC.

Brace J.

This is an action for damages for personal injuries received by the plaintiff on Main street in the city of St. Louis by being struck and run over by the cars of the defendant on said street. The plaintiff obtained a verdict and judgment in the trial court for $ 10,000, and defendant appeals.

On a former appeal a judgment in favor of the plaintiff for $ 7,500 was reversed and remanded. 96 Mo. 99, 8 S.W. 777. The second trial resulting in the judgment from which this appeal is taken was had upon an amended petition, presenting the case in a different shape from that in which it appeared here before. The plaintiff in his amended petition after alleging the incorporation of the defendant sets out the following ordinance of the city of St. Louis in force at the time he received his injuries.

"It shall not be lawful, within the limits of the city of St. Louis, for any car, cars or locomotives propelled by steam power to obstruct any street crossing by standing thereon longer than five minutes, and, when moving, the bell of the engine shall be constantly sounded within said limits, and, if any freight car, cars or locomotives propelled by steam power be backing within said limits a man shall be stationed on top of the car, at the end of the train farthest from the engine, to give danger signals, and no freight train shall, at any time, be moved within the city limits without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals, and to hear the signals from the engine."

He then alleges that on or about the fourteenth "day of April, 1884, defendant had and maintained a large number of tracks, switches and sidings upon and along Main street, a public highway in said city of St. Louis, and its said tracks so laid on said Main street crossed many of the public highways of said city, and, among others, Chouteau avenue. On the morning of said April 14, 1884, plaintiff, in the pursuit of his proper business, and as he was lawfully entitled to do, was walking east on said Chouteau avenue, for the purpose of crossing said Main street, at the point of intersection of said street with said avenue. At that time defendant had blocked and obstructed the crossing of said Chouteau avenue and Main street with its freight cars, and allowed its cars to stand obstructing said street crossing more than five minutes; and thereupon plaintiff, being unable to cross at Chouteau avenue, walked along said Main street in a southerly direction from Chouteau avenue, until he found an opening between the cars standing on said Main street, said opening being from twenty-five to fifty feet in width. Thereupon, plaintiff, not seeing any cars in motion, and hearing no danger signals, and not receiving any warning that any of said cars were in motion, or were about to be put in motion, started to cross said Main street through said opening between the cars. While thus crossing Main street, he was, through the carelessness and negligence of defendant's servants, in charge of its freight cars, struck by a freight car which was being backed on one of the tracks laid upon and along said Main street, was knocked down and run over by said freight car and others, as well as by the locomotive propelling the same, was thereby mangled and bruised, and had one of his legs and one of his arms cut off. Plaintiff says that the car by which he was struck, and those by which he was injured, were then and there being backed by a steam locomotive, and that no bell was sounded, and there was no man stationed on top of the car at the end of the train farthest from the engine, and no look-out kept to warn parties on said street, and no danger signals nor warning of any kind was given; that by reason of this failure on the part of the agents and servants of defendant in charge of said freight cars to keep a proper look-out, and to give proper and usual signals of danger, and by reason of a failure and neglect upon their part to comply with the provisions of the ordinance of St. Louis aforesaid, plaintiff received the aforesaid injuries," and for his damages asks judgment.

The answer was a general denial, and a plea of contributory negligence on which issue was joined by reply. At the close of plaintiff's evidence the defendant interposed a demurrer, which being overruled the defendant introduced evidence, and, after all the evidence was in, renewed its demurrer by asking the court to instruct the jury that under the pleadings and all the evidence the plaintiff is not entitled to recover, which was refused.

It appears from the evidence that on the east part of Main street between Chouteau avenue or La Salle or Sycamore street the defendant maintains six tracks, running north...