Church v. The Chicago & Alton Railroad Company

• Decision Date: 23 December 1893
• Citation: 23 S.W. 1056,119 Mo. 203
• Parties: Church et al. v. The Chicago & Alton Railroad Company, Appellant
• Court: Missouri Supreme Court

23 S.W. 1056

119 Mo. 203

Church et al. v. The Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

George Robertson for appellant.

(1) Charles Dixon and the engineer were fellow servants and defendant's instruction number 3 should have been given. (2) The court at the close of the evidence for the plaintiff should have instructed the jury to return a verdict for the defendant, for the reason that it was the duty of deceased to keep the cable off the track, and failing to so do, his own negligence contributed directly to his death. Evans v Railroad, 62 Mo. 52; Turner v. Railroad, 74 Mo 602; Yancy v. Railroad, 93 Mo. 433; Fletcher v Railroad, 64 Mo. 484. First. If the undisputed facts show that notwithstanding the defendant's negligence the plaintiff would have sustained the injuries complained of, but for his own negligence directly tending to produce them, it is the duty of the court to direct a verdict for defendant. Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Taylor v. Railroad, 86 Mo. 457; Cagney v. Railroad, 68 Mo. 416; Murray v. Railroad, 101 Mo. 236; Kelney v. Railroad, 101 Mo. 67; Webber v. Railroad, 100 Mo. 194. Second. When the evidence fails to connect the negligence with the accident the court should direct a verdict for the defendant. Holman v. Railroad, 62 Mo. 562; Thompson on Trials, sec. 1678; Buesching v. Gas Light Co., 73 Mo. 219. Third. It was the duty of the deceased to keep the cable out of the way of trains and to keep a look out for them. This was a risk that he assumed and the defendant was under no duty to warn him of approaching trains. Ring v. Railroad, 112 Mo. 220; Whit. Smith on Neg., p. 127, also, p. 133; Wood's Master and Servant, 678; Price v. Railroad, 77 Mo. 508; Aldridge v. Furnace Co., 78 Mo. 559. (3) The court erred in permitting the plaintiff to introduce in evidence the notice to produce the rules of the company for her use in the trial of the case. (4) Under the whole evidence the defendant was entitled to a verdict, because it was conclusively shown that the deceased went upon the track immediately in front of a rapidly approaching train. This was proven by the plaintiff, yet not so distinctly as by the evidence for the defendant, and upon that point in the case there was no conflict between the testimony for plaintiff and defendant. The court should therefore, under the evidence, have directed a verdict for the defendant. Barry v. Railroad, 98 Mo. 62; Smith v. Railroad, 21 S.W. Rep.; Field v. Railroad, 80 Mo. 203; Thompson on Trials, secs. 2262-2270; Randall v. Railroad, 109 U.S. 478. (5) There is a conflict between plaintiff's instruction number 2 and defendant's number 14. In the former it is submitted to the jury to say whether there was a rule in plaintiff's time card requiring engineers to whistle on approaching the crusher, and in the latter they are told there is no such rule therein. This is reversible error. Stone v. Hunt, 94 Mo. 475; State v. Herrill, 97 Mo. 105. (6) The court erred in striking from defendant's instruction number 10 the following: "The court instructs the jury that the evidence of credible witnesses who testify affirmatively that the whistle was sounded is entitled to more weight than the testimony of those who testify they did not hear it." Isaacs v. Skrainka, 95 Mo. 517; Murray v. Railroad, 101 Mo. 236. (7) Plaintiff's instruction number 6 was error because there was no conflict in the evidence or contradictory or false evidence given in the case. Bank v. Murdock, 62 Mo. 70; White v. Maxey, 64 Mo. 552; State v. Buchler, 103 Mo. 203. Instructions numbers 1 and 2 given for plaintiff, are misleading and do not properly apply the law to the facts of the case and they ignore the real facts as to how the accident occurred.

Graves & Aull for respondent.

(1) Charles Dixon and the engineer were not fellow servants. Dixon v. Railroad, 109 Mo. 413; Russ v. Railroad, 112 Mo. 45; Parker v. Railroad, 109 Mo. 362; Schroeder v. Railroad, 108 Mo. 322. The decision in Dixon v. Railroad, supra, was between the same parties and is res judicata. Bank v. Taylor, 62 Mo. 338; Adair Co. v. Owsly, 75 Mo. 282; Gaines v. Fender, 82 Mo. 497; McKinney v. Harval, 36 Mo.App. 337; Choteau v. Gibson, 76 Mo. 38; Overall v. Ellis, 38 Mo. 209. (2) The court should not have given a peremptory instruction to find for defendant. The trial court did that before and this court reversed the trial court. Dixon v. Railroad, supra. The question of negligence is compound of law and fact. The court clearly would have erred in refusing to permit the jury to pass upon the question of fact as to the contributory negligence of Dixon. It was a matter of fact under proper instructions to be found by the jury and not by the court. Dixon v. Railroad, 109 Mo. 413; Buesching v. Gas Light Co., 73 Mo. 219; Flynn v. Railroad, 78 Mo. 195; Fink v. Furnace Co., 82 Mo. 276; Petty v. Railroad, 88 Mo. 306; O'Hare v. Railroad, 95 Mo. 662; Stephens v. Railroad, 96 Mo. 213; Barry v. Railroad, 98 Mo. 62; Tetherow v. Railroad, 98 Mo. 74; King v. Railroad, 98 Mo. 235; Murry v. Railroad, 98 Mo. 573. (3) There was no error in admitting the notice in evidence. It was served seasonably and being once served need not be repeated any more than an original summons. (4) Defendant was responsible for the failure of defendant to discharge his duty in sounding the whistle whereby Dixon came to his death. Grumley v. Vulcan Works, 61 Mo. 492; Whalen v. Church, 62 Mo. 326; Cook v. Railroad, 63 Mo. 397; Stephens v. Railroad, 86 Mo. 221; Crane v. Railroad, 87 Mo. 588; Stoddard v. Railroad, 65 Mo. 514; Bromley v. Railroad, 12 Mo.App. 594; Railroad v. O'Brien, 21 P. 32. (5) Where the verdict is for the right party and the instructions as a whole fairly present the case to the jury, this court will not reverse on account of a faulty instruction. Instructions are sufficient when taken as a whole if they embrace all the issues and are not calculated to mislead (Schroeder v. Railroad, 108 Mo. 322; Reilly v. Railroad, 94 Mo. 600); and need not contain in one instruction all the facts necessary to be considered. Schroeder v. Railroad, 108 Mo. 322; Russell v. Ins. Co., 55 Mo. 585.

Black, P. J. Macfarlane, J., not sitting. Barclay, J., agreeing in the result, but not to all that has been said.

OPINION

Black, P. J.

The plaintiff, Kate Church, brought this suit to recover damages for the death of her former husband, Charles Dixon. Since that time she married William Church. The case was here before on an appeal from the ruling of the trial court, sustaining a demurrer to the plaintiff's evidence (109 Mo. 413). On the last trial the defendant produced much evidence, and at the close thereof, asked the court to give an instruction that on the pleadings and all the evidence the plaintiff could not recover, which the court refused, and this ruling is now assigned as error, the claim being that the undisputed evidence shows contributory negligence on the part of the deceased.

Dixon, the former husband of plaintiff, was run over and killed by a west bound passenger train on the defendant's road. He was, at the time, in the employ of the defendant, assisting in operating a rock crusher. The defendant's road runs east and west at the place of the disaster. The rock crusher was located on the north side of the railroad track, and the rock quarry on the south side. An incline plane track ran down from the upper part of the crusher to the north rail of the railroad track, thence south across the railroad track by what is called a strap track, and thence on south some eight feet to a turntable, where tracks radiated out into the quarry pit. Small cars holding about twenty bushels were loaded with rock and then run out to the turntable, where they were adjusted to the incline track and then pushed north to the south side of the railroad track. They were then drawn over the railroad track and up the incline to the crusher by a wire cable attached to a drum in the crusher. The cable was attached to the cars by means of a clevis. It was the duty of Dixon to attach the cable to these small cars when ready to be drawn up, to detach it when they came back unloaded, and to keep the cable off the railroad track.

The railroad track, looking east from the crusher, runs on a curve to the south, close to and around a bluff on the south of the railroad. At the time of the accident the quarry had been worked out some fifty feet from the railroad track south into the bluff, and some fifty feet east and west of the turntable. A person standing on the railroad track where crossed by the strap track, could see east along the railroad for a distance of 1,035 feet, but standing on the turntable he could not see east so far. For a more detailed description of the surroundings, reference is made to the statement of facts in the former opinion.

The charge in the petition is, that defendant maintained a whistling post one hundred and fifty yards east of the crusher, at which persons in charge of west bound trains were required to sound the steam-whistle for the protection of passengers and employees, and that on the occasion in question the engineer neglected and failed to give the signal, by reason of which Dixon was killed. The plaintiff produced some evidence tending to show that there was a post with a whistling board on it just east of the crusher; and she produced much evidence to the effect that it was customary for the trains going west to whistle at that point to give warning to the men at work at the crusher. She also produced evidence of a positive character that the whistle was not sounded or the bell rung on the occasion...