18 S.W. 919 (Mo. 1892), Dahlstrom v. St. Louis, I.M. & S. Ry. Co.

Citation:18 S.W. 919, 108 Mo. 525
Opinion Judge:Brace, J.
Party Name:Dahlstrom v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:H. S. Priest and H. G. Herbel for appellant. E. W. Pattison for respondent.
Judge Panel:IN BANC: Brace, J. Sherwood, C. J., dissents. IN BANC: Brace, J. All the judges concur, except Sherwood, C. J.
Case Date:March 01, 1892
Court:Supreme Court of Missouri
 
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Page 919

18 S.W. 919 (Mo. 1892)

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

[108 Mo. 528] 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.

[108 Mo. 529] "It shall not be lawful, within the limits of the city of St. Louis, for any car, cars or locomotives

Page 920

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...

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