21 S.W. 1094 (Mo. 1893), Gratiot v. The Missouri Pacific Railway Company

Citation:21 S.W. 1094, 116 Mo. 450
Opinion Judge:Burgess, J. --
Party Name:Gratiot v. The Missouri Pacific Railway Company, Appellant
Attorney:B. Pike for appellant. H. S. Priest, also for appellant, on motion for rehearing. Davis & Davis, A. R. Taylor and J. P. Maginn for respondent.
Judge Panel:Burgess, J. Brace, Barclay and Macfarlane, JJ., concur; Black, C. J., concurs in a separate opinion, except as to the damages assessed, which he thinks excessive. Gantt and Sherwood, JJ., dissent. Brace, Barclay and Macfarlane, JJ., concur; Black, C. J., concurs in a separate opinion, except as t...
Case Date:June 06, 1893
Court:Supreme Court of Missouri
 
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Page 1094

21 S.W. 1094 (Mo. 1893)

116 Mo. 450

Gratiot

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 6, 1893

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

Affirmed.

B. Pike for appellant.

(1) Defendant's instruction at the close of the whole case in the nature of a demurrer to the evidence, should have been given. Zimmerman v. Railroad, 71 Mo. 490; Yarnall v. Railroad, 75 Mo. 583; Moody v. Railroad, 68 Mo. 470; Abbett v. Railroad, 30 Minn. 482; Rogstad v. Railroad, 14 American and English Railroad Cases, 649; Bell v. Railroad, 72 Mo. 50; Reading v. Railroad, 19 American and English Railroad Cases, 276; Matti v. Railroad, 32 American and English Railroad Cases, 73; Hixon v. Railroad, 80 Mo. 336; Turner v. Railroad, 74 Mo. 602; Purl v. Railroad, 72 Mo. 168; Neier v. Railroad, 12 Mo. 25; Kelly v. Railroad, 75 Mo. 138; Tully v. Railroad, 14 American and English Railroad Cases, 682. (2) The refusal of defendant's instructions was erroneous. See cases cited under first point, and Devitt v. Railroad, 50 Mo. p. 304: Zimmerman v. Railroad, 71 Mo. 490; Yarnall v. Railroad, 75 Mo. 583; Price v. Railroad, 72 Mo. 414. (3) The court committed error in the giving of the instructions on his own motion. See cases cited under second point, and Waldhier v. Railroad, 71 Mo. p. 515; Gurley v. Railroad, 93 Mo. 450; Kersey v. Railroad, 79 Mo. 364; Current v. Railroad, 86 Mo. 66; Harris v. Railroad, 37 Mo. 308; Price v. Railroad, 72 Mo. 416; Cary v. Railroad, 60 Mo. 213. (4) The verdict was grossly excessive and manifestly the result of prejudice, passion and a perversion of judgment or of a misconception of duty. Sawyer v. Railroad, 37 Mo. 240, and cases cited therein.

H. S. Priest, also for appellant, on motion for rehearing.

The opinion of the court, upon the question of respondent's contributory negligence, is in conflict with the following controlling and ably considered authorities: Railroad v. Webb, 8 Southern Rep. 518; Railroad v. Houston, 95 U.S. 697; Schofield v. Railroad, 114 U.S. 615; Railroad v. Hobbs (Md. 1884), 19 American and English Railroad Cases, 337; Mynning v. Railroad, 28 American and English Railroad Cases, (Mich. 1887), 667; Harris v. Railroad, 33 N.W. (Minn. 1887), 12; Brown v. Railroad, 22 Minn. 165; Railroad v. Mali, 25 American and English Railroad Cases (Md. 1886), 628; State v. Railroad 58 Md. 428; Hixson v. Railroad, 80 Mo. 382; Zimmerman v. Railroad, 71 Mo. 476; Turner v. Railroad, 74 Mo. 603; Kelly v. Railroad, 75 Mo. 138; Powell v. Railroad, 76 Mo. 80; Abbett v. Railroad, 30 Minn. 482; Haus v. Railroad, 47 Mich. 401; Kelly v. Railroad, 8 A. (Pa.) 856; Merkle v. Railroad, 49 N. J. 473; Fox v. Railroad, 85 Mo. 679; Railroad v. Richards, 59 Texas, 373; Company v. Movell, 40 Ohio St. 338; Rogstad v. Railroad, 31 Minn. 208; Yancy v. Railroad, 93 Mo. 432; Butts v. Railroad, 98 Mo. 272. (2) The court erred in holding that an honest mistake is not negligence; it is the very essence of negligence. It is an inadvertent disregard of duty followed by an injury that gives a cause of action for what in law is pronounced negligence. In Isbell v. Railroad, 60 Mo. 475, the engineer saw what he honestly took to be a dog on the track; it was a child. His "honest mistake" did not relieve the railroad company. See also Warner v. Railroad, 81 Mo. 368; Pure v. Railroad, 72 Mo. 171; 4 American and English Encyclopedia of Law, p. 72. The case of Bonnelll v. Railroad, 39 N. J. Law, 185, is an exceptional one and not at all applicable to the facts of this case. (3) It has been the constant practice of courts to declare ordinances void that are unreasonable, and that question was not a matter solely for the municipal assembly. Corrigan v. Gage, 68 Mo. 541; Meyers v. Railroad, 57 Mo. 555; St. Louis v. Weber, 44 Mo. 547. (4) The court erred in holding in its opinion that the respondent was only entitled to a general clause in the instruction to the effect that if the collision was the result of the joint negligence of both plaintiff and defendant, then the plaintiff was not entitled to recover. Railroad v. Mall, 28 American and English Railroad Cases, 632; Yarnall v. Railroad, 75 Mo. 57.

Davis & Davis, A. R. Taylor and J. P. Maginn for respondent.

(1) Defendant's instructions in the nature of a demurrer to the evidence, at the close of the whole case was properly refused. Frick v. Railroad, 75 Mo. 595; Buesching v. Gas Light Co., 73 Mo. 219; Weber v. Railroad, 100 Mo. 194; Tetherow v. Railroad, 98 Mo. 74; Kelly v. Railroad, 70 Mo. 604; Smith v. Railroad, 61 Mo. 588; Meyer v Railroad, 40 Mo. 151; Wilkins v. Railroad, 101 Mo. 95; Hilz v. Railroad, 101 Mo. 36, and cases cited therein; O'Hare v. Railroad, 95 Mo. 662; O'Connor v. Railroad, 94 Mo. 157; Tabler v. Railroad, 93 Mo. 79; Huhn v. Railroad, 92 Mo. 440; Keim v. Co., 90 Mo. 314. (2) Defendant's instructions refused by the court were properly refused. Dowell v. Guthrie, 99 Mo. 653; Weber v. Railroad, 100 Mo. 194; Barry v. Railroad, 98 Mo. 62; Tetherow v. Railroad, 98 Mo. 74; Brown v. Railroad, 99 Mo. 310; Kellny v. Railroad, 101 Mo. 67; Jennings v. Railroad, 99 Mo. 394. Johnson v. Railroad, 77 Mo. 546; Petty v. Railroad, 88 Mo. 305-319; Beach on Contributory Negligence, p. 459, and other cases cited under first point; Forrester v. Moore, 77 Mo. 658; Mathews v. Grain Elevator, 59 Mo. 477; Palmer v. Railroad, 76 Mo. 217; Coe v. Griggs, 76 Mo, 619; Utley v. Talfree, 77 Mo. 307. (3) The instructions given by the court of his own motion were without error. See cases cited under second point and Zimmerman v. Railroad, 71 Mo. 480; Frick v. Railroad, 75 Mo. 597; Hilz v. Railroad, 101 Mo. 36; Rine v. Railroad, 88 Mo. 399; distinguishing: Yarnall v. Railroad, 75 Mo. 583; Maher v. Railroad, 64 Mo. 267; Zimmerman v. Railroad, 71 Mo. 477; Kelly v. Co., 95 Mo. 279; Guenther v. Railroad, 95 Mo. 286; Johnson v. Railroad, 77 Mo. 547. (4) The damages were not excessive. Griffith v. Railroad, 98 Mo. 168; Dougherty v. Railroad, 97 Mo. 647; Waldhier v. Railroad, 87 Mo. 49; Porter v. Railroad, 71 Mo. 66; Sheehy v. Railroad, 94 Mo. 574.

Burgess, J. Brace, Barclay and Macfarlane, JJ., concur; Black, C. J., concurs in a separate opinion, except as to the damages assessed, which he thinks excessive. Gantt and Sherwood, JJ., dissent.

OPINION

Page 1095

[116 Mo. 455] In Banc

Burgess, J. --

The plaintiff, a physician, aged sixty years, brought this action in the circuit court for the city of St. Louis, to recover damages on account of injuries sustained in a collision with a passenger train on defendant's railway, at a point where it is crossed by a highway commonly known as Campbell's road. The accident occurred within the limits of the City of St. Louis, at a point distant from the union depot a little over five and one half miles. From the union depot along the defendant's railway to the western boundary of the city limits is about eight miles.

By his petition, the respondent relied upon the three following grounds for recovery:

First. The failure to ring the bell of the engine eighty rods before reaching the crossing, as required by statute.

Second. Moving the train at a speed exceeding six miles per hour, the limitation imposed by ordinance of the City of St. Louis.

Third . A failure to constantly sound the bell, as required by ordinance, when trains are moving.

The answer was a general denial, with the plea of contributory negligence on the part of plaintiff.

[116 Mo. 456] With respect to the details of the respondent's conduct immediately preceding, and at the time of the casualty, he is the only witness.

The prominent points of reference in the testimony are, "The bridge," Howard's Station, the smelting works, Cheltenham and Campbell's road. From the union depot to Cheltenham it is five and one-fourth miles; Campbell's road crossing is about 150 yards west of Cheltenham; Howard's station is one-half mile east of Cheltenham; the bridge is 200 or 300 yards east of Howard's, and the smelting works are a little west of Howard's, and between Howard's and Cheltenham.

The defendant's railway is a double track between the Union depot and Kirkwood, a suburban town fourteen miles distant, and the trains, both freight and passenger upon it, are frequent in both directions. The north track, regarding it as running east and west, is used by the west bound trains, and the south track by the east bound.

Dr. Gratiot had lived and practiced medicine at Cheltenham for forty-five years, was perfectly familiar with the locality and its surroundings, and with the schedules of time of defendant's trains, and knew from daily observation the rate of speed at which the train that occasioned the injury ran over that part of the road passing through Cheltenham and vicinity.

He was struck by the through express train which leaves the Union depot at 9 o'clock in the morning, and which, he says, was due at Cheltenham at about 9:10; that on the morning he received his injuries, and before venturing a crossing of the railroad track at Campbell's road, at the time he was hurt, he had gone quite up to the crossing, and because he was unadvised whether the express train had passed along, he would not venture over, although he, at that time, saw no evidence of an approaching train from a perfect view of [116 Mo. 457] the tracks in both directions. Instead, however, of crossing at that time, he went to the house of a lady friend for the purpose of ascertaining the exact time of the day, so that he might know...

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