Easley v. the Missouri Pacific Railway Company
| Decision Date | 22 December 1892 |
| Citation | 20 S.W. 1073,113 Mo. 236 |
| Parties | Easley v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.--Hon. R. H. Field, Judge.
Affirmed.
Elijah Robinson for appellant.
(1) The trial court should not have permitted the plaintiff to testify that there was no light at the alleged crossing where he was injured. There was no ordinance requiring a light to be kept at that point, and, therefore, the defendant was not required to keep one there. (2) The testimony of the plaintiff to the effect that none of defendant's employes came to him after he was hurt, was not proper. It had no legitimate bearing on any issue in the case, and was introduced for the purpose of creating prejudice against the defendant. The fact that it was improperly admitted raises a presumption of prejudice to defendant. (3) The court erred in permitting the plaintiff to show how the crossing in question had been used several years before the accident. The testimony should have been confined to the time of the accident, or so recently before the accident as to raise a presumption that same state of affairs continued. Ely v Railroad, 77 Mo. 34; Hipsley v. Railroad, 88 Mo. 348. (4) The court should not have permitted the plaintiff to ask defendant's engineer on cross-examination whether he regarded the point in question as a public crossing. The opinion of the engineer, whatever it may have been, could not change the facts, and this question put to the engineer was calculated to operate prejudicially to defendant. (5) The question of plaintiff's contributory negligence was not properly submitted. The court did not define what was meant by the term "without fault." Defendant was entitled to its instruction number 4, to the effect that the absence of a light at the crossing where plaintiff claims to have been injured, required of him a higher degree of care. Defendant was also entitled to have its instruction number 6 given as asked, and the modification made by the court only tended to make the meaning of the instruction difficult of comprehension by the jury. The law requires a party about to cross railroad tracks to look and listen, and, if by so doing he could discover approach of train, and he failed to do so he cannot recover, and the defendant was entitled to have the court instruct the jury to that effect. Moberly v Railroad, 98 Mo. 187. (6) The fact, that a number of the jurors during the progress of the trial visited the locality where the accident occurred, for the purpose of inspecting the same, was of itself sufficient to entitle defendant to a new trial. Ottman v. Railroad, 32 Kan. 419; Stampofski v. Steffens, 79 Ill. 303; Thompson on Trials, sec. 2605, p. 1969, and cases there cited. (7) The verdict was so clearly in conflict with the testimony in the case that the conclusion that the jurors were influenced by passion or prejudice is irresistible. In such case the trial court should set aside the verdict; and, if it refuse to do so, its judgment should be reversed by this court.
Boland & O'Grady and Geo. N. Elliott for respondent.
(1) Whether or not the crossing, at the time of the accident, was lighted artificially is as material and competent as the question of it then being day or night. The evidence admitted has no reference to any duty of appellant, either under ordinance or in the exercise of ordinary care, to have maintained a light there. Appellant's third instruction properly presented the law to the jury on this point. (2) The testimony as to whether or not appellant's trainmen who were on the train which did the injury came to plaintiff while he was lying injured at the crossing, is competent to show whether or not the train was moving slowly over the crossing and stopped soon after, or moved rapidly on, westward. (3) In proving that the public crossing existed by prescription, it was not only competent but necessary to show that it had been so used for the last ten years. Appellant's citations in this connection are wholly inapplicable. State v. Proctor, 90 Mo. 334; State v. Bradley, 31 Mo.App. 318; Elliott on Streets & Roads, p. 138. (4) The objection by appellant that respondent's instructions did not properly present the question of contributory negligence to the jury is not well taken. In the first place, contributory negligence was pleaded by appellant. It devolved upon appellant to prove it and to ask for proper instruction of the jury upon the point. If appellant failed to do this at the trial, it cannot now be heard to complain. Johnson v. Railroad, 96 Mo. 340; Tetherow v. Railroad, 98 Mo. 74; People v. Ahern, 29 P. 49; Guano Co. v. Tillery, 14 S.E. (N. C.) 639. The words, "without fault on his part," are plain terms used in their ordinary meaning, and no further definition or explanation was really necessary. Cottril v. Krum, 100 Mo. 397; Holland v. McCarty, 24 Mo.App. 112. By respondent's fifth instruction contributory negligence is clearly and fully defined from his standpoint; and by appellant's sixth (modified) and seventh instructions it is clearly and fully defined from appellant's standpoint, and these instructions cover all points of the evidence in the case relating to contributory negligence. Haniford v. City of Kansas, 103 Mo. 172. Appellant's fourth instruction, which was refused, is objectionable because it singles out one or two facts alleged to be in evidence, comments upon them and applies the rule of a higher degree of care thereunder to respondent and not to appellant. Jones v. Jones, 57 Mo. 138; State v. Smith, 53 Mo. 267; McClure v. Ritchey, 30 Mo.App. 445; Copp v. Hardy, 32 Mo.App. 588; White v. Railroad, 34 Mo.App. 78. The modification of appellant's sixth instruction was entirely proper. It is nowhere held that a person approaching and passing over a public railway crossing is required to exercise more than ordinary care. Appellant's case cited on this point clearly states this to be the rule. Moberly v. Railroad, 98 Mo. 183; Kenney v. Railroad, 105 Mo. 270; O'Connor v. Railroad, 94 Mo. 150. (5) Affidavits or admissions of jurors to impeach their verdict cannot be received. It is against public policy. State v. McNamara, 100 Mo. 100; State v. Rush, 95 Mo. 199; Prattz v. Coffman, 33 Mo. 72; Thompson on Trials, secs. 2603 and 2622. If the misconduct of a juror comes to the knowledge of the losing party before the case is finally submitted to the jury and such party fails to notify the court of it, or to interpose an objection at the time, he cannot after the verdict object. State v. Forsythe, 89 Mo. 667; Lewis v. McDaniel, 82 Mo. 577; Nichols v. Metzger, 43 Mo.App. 607; Thompson on Trials, secs. 904, 2605, 2613, 2620, 2622; Stampofski v. Steffens, 79 Ill. 303; 12 American & English Encyclopedia of Law, pp. 378, 379, 380. (6) Where an appeal taken is without merit, and has evidently been taken for vexation and delay merely, it is the rule of this court to affirm the judgment with ten per cent. damage. President Mining & Milling Co. v. Coquard, 40 Mo.App. 40; Taylor v. Scott, 26 Mo.App. 249; Cordell v. Bank, 64 Mo. 600.
Plaintiff was run over by one of defendant's trains and lost a leg in consequence. The object of this action is to establish defendant's liability for that mishap because of its negligence in several particulars which will appear later.
The defense was a denial of the negligence alleged and a charge of contributory negligence on the part of plaintiff.
The points advanced for a reversal do not require a statement of the pleadings.
The case was tried before Judge Field and a jury, with the result of a verdict for plaintiff for $ 4,000, on which judgment was rendered, after ineffectual motions for new trial and in arrest. Defendant appealed.
Plaintiff's injury occurred about seven or eight o'clock P. M., November 22, 1888, at the crossing of Broadway and defendant's railway in Kansas City, Missouri. The local ordinances forbade the moving of any locomotive, car, etc., within the city at a greater speed than six miles an hour, and also required all moving cars, etc., between sunset and sunrise, to have at least one lamp, headlight or lantern conspicuously placed in front thereof, facing in the direction in which the same might be moving.
The crossing in question passes over defendant's tracks at a right angle. The general direction of defendant's line at that point is east and west. A small watch-house, for the use of a flagman, stands a few feet north of the tracks and west of the general line of travel on the roadway. The flagman stationed there is in the employ of the defendant. The passage-way over the tracks is of plank and wide enough for one wagon.
The plaintiff came upon the crossing going south, and noticed a train approaching from the west on the track farthest from him. He "flashed his eyes up and down the track before he made the start," to quote his own language; and then advanced, intending to await the passage of the train mentioned, when, just as he stepped upon the first (or northern) track, he was hit by a backing freight car moving westward at a speed of fifteen miles an hour, without a light or any signal of its approach. The night was dark and there were no lights about the crossing.
There was a conflict of evidence as to the precise spot where plaintiff received his injuries. Defendant's witnesses located it from fourteen to forty feet west of the crossing; but plaintiff's statement that it was upon the crossing was corroborated by the police officer who found him lying on the ground, and noticed the blood on the rail where the plaintiff was hit.
In this connection the court instructed that, if the...
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