Huckshold v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 31 January 1887
• Citation: 2 S.W. 794,90 Mo. 548
• Parties: Huckshold v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

2 S.W. 794

90 Mo. 548

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

Supreme Court of Missouri

January 31, 1887

Appeal from Iron Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

Geo. H Benton for appellant.

(1) The court erred in refusing to permit the introduction of the testimony of Fred. Huber, taken before the coroner. Hays v. Walker, 2 Mo. 222; Peck v. Richey, 66 Mo 114; Pruitt v. Martin, 59 Mo. 325; Spoonemore v Cables, 66 Mo. 579. (2) The court erred in giving the instructions requested by plaintiff, and especially in giving the fourth instruction, without the qualification that said contributory negligence may be disclosed by the testimony for the plaintiff. Stepp v. Railroad, 85 Mo. 230. (3) The demurrer to the evidence ought to have been given by the court at the close of the plaintiff's case, and also at the close of the whole case. Powell v. Railroad, 76 Mo. 82; Harlem v. Railroad, 64 Mo. 480; Purl v. Railroad, 72 Mo. 168. (4) Defendant's refused instructions were correct law, applicable to the facts in the case, and should have been given. Henze v. Railroad, 71 Mo. 836; Railroad v. Beale, 73 Pa. St. 503; Besergel v. Railroad, 34 N.Y. 628; Morris & Essex v. Haslan, 33 N. J. 149; Benton v. Railroad, 42 Iowa 192; Dodge v. Railroad, 34 Iowa 280; Fleming v. Railroad, 49 Cal. 253; Hixson v. Railroad, 80 Mo. 335; Johnson v. Railroad, 77 Mo. 549; Railroad v. Feller, 84 Pa. St. 504. (5) The closing argument of plaintiff's counsel was calculated to prejudice the minds of the jury against the defendant, and ought not to have been permitted to be made by the court. State v. Lee, 66 Mo. 165. (6) The court erred in overruling defendant's motion for a new trial. Authorities cited above; Hoppe v. Railroad, 61 Wis. 357; Railroad v. Johnson, 103 Ill. 512; Coal Co. v. Conlan, 6 Am. & Eng. R. R. Cases, 243; Railroad v. Stewart, 83 Ind. 503.

O. G. Hess and Klein & Fisse for respondent.

(1) (a) There was no error in the refusal of the court to allow the testimony of Fred. Huber, taken before the coroner, to be read as independent evidence at the trial of this case. (b) Besides, the bill of exceptions does not state the evidence which was offered and excluded, in the connection where it was offered and excluded; and where the record fails to show the evidence so excluded, it is a conclusive presumption that the ruling of the trial court was correct. Wilson v. Board of Education, 63 Mo. 141. (c) The objection to the evidence is not preserved in the record, non constat, but it shows that the objections may have been perfectly good for a number of reasons, of which this court cannot now judge. (2) [a] It was not error to refuse to sustain defendant's demurrer to the evidence at the close of plaintiff's case. Session Acts, 1881, p. 79. (b) There was a conflict in the testimony. It is only when it is apparent at first blush that the finding of the jury in favor of the plaintiff would be wholly unsupported by the facts that an instruction for a non-suit is proper. Drain v. Railroad, 86 Mo. 574; Meyer v. Railroad, 40 Mo. 151; Callahan v. Warne, 40 Mo. 137; Norton v. Ittner, 56 Mo. 351; Stoddard v. Railroad, 65 Mo. 514; Buesching v. Gas Light Co., 73 Mo. 219; Mauerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653; Stepp v. Railroad, 85 Mo. 229. (3) There was no error in granting plaintiff's fourth instruction without the qualification that contributory negligence might be disclosed by the evidence offered by the plaintiff. The rule laid down in the case cited in appellant's brief (Stepp v. Railroad, 85 Mo. 229, 235-6), does not support the proposition contended for by appellant. (a) The presumption of law is, that the deceased was in the exercise of due care at the time of the accident. Buesching v. St. Louis Gas Light Co., 73 Mo. 233; Flynn v. Railroad, 78 Mo. 212. (b) It devolves upon those who allege the default of the company to make proof of its negligence, and that the injury was occasioned in consequence of such negligence; and, on the other hand, when the traveler's fault, if any there was, is not disclosed by his own testimony, and the company is shown to have been in default, it devolves upon the defendant to show the want of proper care on the part of the person injured, and that, by the observance of such precautions as are required by law, he could have seen or heard the train. Johnson v. Railroad, 77 Mo. 547; Stepp v. Railroad Co., 85 Mo. 229, 236; Buesching v. Gas Light Co., 73 Mo. 229; Sweigardt v. Railroad, 75 Mo. 480; Thompson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 509. (c) There was evidence here that the tender and locomotive running backward, was without any light to indicate its approach; and that no signal of any kind was given to warn the traveler of such approach, and that it was running at an illegal rate of speed. This was such an omission to perform the duties imposed upon the defendant by law as constituted negligence on defendant's part. Sess. Acts, 1881, p. 79; Ordinances of St. Louis; Stepp v. Railroad, 85 Mo. 229; Halferty v. Railroad, 82 Mo. 90; Drain v. Railroad, 86 Mo. 574. (4) There was no error in refusing defendant's instructions numbered one, four, seven, eight and nine. (5) There was nothing in the closing argument of plaintiff's counsel demanding a reversal. Where the court interrupts counsel, upon objection being made by opposing counsel, and requires him to confine his argument to the evidence in the case, there is no ground for reversal. State v. Lee, 66 Mo. 165; 21 Cent. Law Jour. 447; State v. Hamilton, 55 Mo. 522; Lloyd v. Railroad, 53 Mo. 513; Bradshaw v. State, 22 N.W. 363; McClean v. State, 24 N.W. 724; Strauss v. Railroad, 86 Mo. 421. (6) The motion for new trial was properly overruled.

OPINION

Norton, C. J.

This suit was instituted by plaintiff to recover damages for the alleged killing of his minor son, on the crossing of Catalan street, in the city of St. Louis, by the negligence of defendant in running its locomotive at an unlawful rate of speed; in failing to ring the bell of the locomotive at a distance of at least eighty rods from the place where the railroad crosses Catalan street, and keep the same ringing until the locomotive had crossed the street; in running the engine backwards, in the dark, so that its approach could not be seen, without any headlight or other light to signal or indicate its approach. The answer was a general denial, and set up contributory negligence on the part of the defendant.

On the trial plaintiff obtained judgment, from which defendant has appealed, and assigns for error, among others, the action of the court in refusing to sustain a demurrer to the evidence, which necessitates an examination of it. On the part of plaintiff the evidence tends to show that plaintiff's son, a youth about seventeen years old, was, on the eighth of December, 1882, at work on a night shift at the Vulcan Iron Works, in Carondelet, in the city of St. Louis; that, between five and six o'clock in the morning, he left the works for his home, driving a horse, hitched to a new and strong cart with heavy iron axle, and heavy wide tire; that he left in company with John Senn, a fellow workman, who was also driving a cart; that he stopped at a well, about twenty-five feet from the track, and southeast of Catalan street crossing, to water his horse, and then drove on, and stopped his horse and cart ten minutes, and about ten feet from the track at the north end of two box cars, standing south of Catalan street. Senn testified that deceased stopped at that place to wait for him; that, at the place where deceased stopped his horse, his view of the track south of Catalan street was obstructed by two box cars, standing south of said street, and east of the railroad track; that, when Senn finished watering his horse, he drove up to deceased, who drove on from where he had stopped, and the cart was struck by defendant's engine at the crossing on Catalan street, breaking the wheel all to pieces, axletree and shafts, and killing the plaintiff's son instantly. Senn testified that the bell of the engine was not rung till after the accident; that the engine was running backwards in a northerly direction; that it was a dark morning; that there was no light on the rear end of the tender; that the headlight was on the south end of the engine, which was south of Catalan street crossing, and could not be seen; that the engine was running at twenty-five or thirty miles an hour; that he did not see or hear the approach of the engine till about the time the collision occurred, when he hallooed to deceased, and the cart was struck and deceased was killed.

Witness Huber, who was also a laborer at the Vulcan Iron Works, testified that he left the works at twenty minutes before six o'clock and went on the north side of Catalan street, as far as the railroad track and saw a cart standing a few feet east of the railroad track; that he saw another cart come up to this one; that he was walking up from the track northwest and looked round on the track, thinking an engine might come; the express always came about that time; that when he looked down he did not see anything coming, and all at once heard a rattle behind, and saw the cart lying there and the boy killed; that after the collision the engine ran a block or about three hundred feet northward before it stopped; that the speed of the engine was about thirty miles an hour; that he saw no light and heard no bell ring till after the engine passed him.

The plaintiff also put in evidence an ordinance of the city of St. Louis, making it unlawful for any locomotive, propelled by steam power, to run at a rate of speed exceeding six miles an hour within the limits of the city, and requiring...