23 S.W. 1056 (Mo. 1893), Church v. The Chicago & Alton Railroad Company

Citation:23 S.W. 1056, 119 Mo. 203
Opinion Judge:Black, P. J.
Party Name:Church et al. v. The Chicago & Alton Railroad Company, Appellant
Attorney:George Robertson for appellant. Graves & Aull for respondent.
Judge Panel:Black, P. J. Macfarlane, J., not sitting. Barclay, J., agreeing in the result, but not to all that has been said. Barclay Barclay
Case Date:December 23, 1893
Court:Supreme Court of Missouri
 
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Page 1056

23 S.W. 1056 (Mo. 1893)

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

[119 Mo. 208] 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...

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