Weller v. The Chicago, Milwaukee & St. Paul Railway Company

Decision Date05 March 1894
Citation23 S.W. 1061,120 Mo. 635
PartiesWeller v. The Chicago, Milwaukee & St. Paul Railway Company, Appellant
CourtMissouri Supreme Court

Rehearing Denied 120 Mo. 635 at 657.

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed and remanded.

Pratt Ferry & Hagerman for appellant.

(1) The demurrer to the evidence should have been sustained, and defendant's instruction 1 should have been given, because the deceased was guilty of contributory negligence. First. It was the duty of deceased to look and listen, and if there were any difficulties in the way of seeing or hearing he should have stopped, and if, by complying with such duty, he could have discovered the approach of the train, then he was guilty of negligence contributing to his injury. Beach on Cont. Neg. [2 Ed.], sec. 180; Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Henze v Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 602; Kelley v. Railroad, 75 Mo. 138; Lenix v. Railroad, 76 Mo. 84; Hixson v. Railroad, 80 Mo. 340; Johnson v. Railroad, 77 Mo. 546; Stepp v. Railroad, 85 Mo. 229; Kelly v. Railroad, 88 Mo. 534; Butts v. Railroad, 98 Mo. 272; Hanlon v. Railroad, 104 Mo. 381; Dlauhi v. Railroad, 105 Mo. 645; Boyd v. Railroad, 105 Mo. 371. Second. The noise of Weller's wagon, and any of the difficulties in the way of seeing, if existing as claimed, made it his imperative duty to stop; at least to slacken the speed of his horse. Henze v. Railroad, 71 Mo. 636; Turner v. Railroad, 74 Mo. 602; Hixson v. Railroad, 80 Mo. 335; Stepp v. Railroad, 85 Mo. 229; Chase v. Railroad, 78 Me. 346; Fleming v. Railroad, 49 Cal. 253; Merkle v. Railroad, 49 N. J. L. 473; Seefeld v. Railroad, 70 Wis. 216; Mynning v. Railroad, 64 Mich. 93; Mantel v. Railroad, 33 Minn. 62; Haines v. Railroad, 41 Iowa 227; Benton v. Railroad, 42 Iowa 192; Mahlen v. Railroad, 49 Mich. 585; Railroad v. Holmes, 3 Wash. 202; McCrory v. Railroad, 31 F. 531; Tucker v. Duncan, 9 F. 867; McCall v. Railroad, 54 N.Y. 642; Haas v. Railroad, 47 Mich. 401; Schaefert v. Railroad, 62 Iowa 624. Third. The facts being disclosed by the testimony of an eye witness, there is no room for indulging in conjecture or calling to our aid any presumptions. Mynning v. Railroad, 64 Mich. 93, and cases cited; Railroad v. Stebbing, 62 Md. 502; Dewald v. Railroad, 44 Kan. 586; Galpin v. Page, 18 Wall. 350; Railroad v. Holmes, 3 Wash. 202. (2) Defendant's instruction 3 was improperly refused. The refused instruction simply declared that, upon the facts, the deceased did not comply with his legal duty in approaching the railroad tracks. (3) Plaintiff's instruction 1 erroneously submitted the facts as to a violation of section 10, article 37, revised ordinances, when such submission was not justified by the evidence. (4) Plaintiff's instructions 1 and 2 were misleading, in that they told the jury that the burden was on defendant to prove contributory negligence, when defendant had offered no evidence and relied solely on that introduced by plaintiff. (5) The court below erred in giving plaintiff's instruction 3 saying that Weller could presume that defendant would not be negligent. First. This instruction assumed that the deceased actually had in mind the requirements of the law and ordinances establishing defendant's duty and relied thereon. The presumption referred to (if the instruction properly states the law) was one of fact (Justice v. Lang, 52 N.Y. 323) and should not have been mentioned to the jury when the issue as to contributory negligence was submitted. Lynch v. Railroad, 112 Mo. 420; Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423; Meyers v. Kansas City, 18 S.W. 914; Ham v. Barrett, 28 Mo. 388; Chouquette v. Barada, 28 Mo. 491; Schulter v. Ins. Co. 1 Mo.App. 285; Railroad v. Stebbing, 62 Md. 504; Railroad v. Brazil, 72 Tex. 233; Heldt v. Webster, 60 Texas, 207; 2 Thompson on Trials, sec. 2290. Second. The instruction is also vulnerable to the objection that it singles out and improperly comments upon an isolated matter. Lynch v. Railroad, supra; Chouquette v. Barada, 28 Mo. 491; Anderson v. Kincheloe, 30 Mo. 520; Clark v. Hammerle, 36 Mo. 620; Chappell v. Allen, 38 Mo. 213; Fine v. Schools, 39 Mo. 59; Jones v. Jones, 57 Mo. 138; Forrester v. Moore, 77 Mo. 651; Barr v. Kansas City, 105 Mo. 550; Willmott v. Railroad, 16 S.W. 500; Schulter v. Ins. Co., 1 Mo.App. 285; Weil v. Schwartz, 21 Mo.App. 372; Heldt v. Webster, 60 Tex. 207; Railroad v. Brazil, 72 Tex. 233. Third. Independently of the last proposition, the instruction was erroneous, because it gave the right to assume that defendant had complied with the law and ordinances, simply because deceased did not know to the contrary, without regard to the question whether by ordinary care he could have so known. The right to presume that a railroad company will comply with the law as to signals only exists where the traveler performs his duty before crossing the track and then neither knows nor can know to the contrary. Beach on Contributory Negligence [2 Ed.], secs. 38, 39; 1 Shearman & Redfield on Negligence [4 Ed.], sec. 92; Lynch v. Railroad, supra; Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Turner v. Railroad, 74 Mo. 602; Hanlon v. Railroad, 104 Mo. 381; Dlauhi v. Railroad, 105 Mo. 645; Leduke v. Railroad, 4 Mo.App. 485; Grippen v. Railroad, 40 N.Y. 34; Childs v. West Troy, 23 Hun, 68; Grimb v. Railroad, 1 N.Y. 715. The thought of the instruction directly opposes the rule of law that a person about to cross a railroad track must look and listen. (6) The court erred in excluding section 1 of article 34, revised ordinances of the city, providing against driving "faster than a moderate gait," and so as not to collide with any object. (7) The court erred in permitting Collins to testify as to the effect of the rays of a headlight upon a traveler. These questions, so asked the witness, called for what was peculiarly for the jury and for matters that the latter were as capable of knowing about as the witness. Gavisk v. Railroad, 49 Mo. 274, 277; Eubank v. Edina, 88 Mo. 650; Gutridge v. Railroad, 94 Mo. 468. (8) The attending physician, Halley, was improperly permitted to say he was called by the family; that Weller's wife was too sick to go to the hospital; that her brothers went, and that they were related to one Thomas West. This testimony was offered simply to arouse sympathy, and to connect the plaintiff with Thomas West, who had some sort of standing with some juror. Stephens v. Railroad, 96 Mo. 207; Overholt v. Vieths, 93 Mo. 422; Railroad v. Roy, 102 U.S. 451; Chicago v. O'Brennan, 65 Ill. 160; Railroad v. Powers, 74 Ill. 341; Railroad v. Moranda, 93 Ill. 302.

Gage, Ladd & Small for respondent.

(1) Objection is made to the declaration in plaintiff's instructions numbers 1 and 2, that the burden of proving contributory negligence on the part of the deceased was upon the defendant. That such an instruction is proper is settled by the decisions of this court. Huckshold v. Railroad, 90 Mo. 548; Murray v. Railroad, 101 Mo. 236. (2) And the precise point of the objection founded upon a fanciful distinction between the above cases and the one at bar is met by Railroad v. Horst, 93 U.S. 291; Railroad v. Tobriner, 13 S.Ct. 557. (3) Plaintiff's instruction number 3 is justified by the repeated declarations of this court. Eswin v. Railroad, 96 Mo. 290; O'Connor v. Railroad, 94 Mo. 150; Kellny v. Railroad, 101 Mo. 78; Jennings v. Railroad, 20 S.W. 491; Kenney v. Railroad, 105 Mo. 270. (4) Defendant's instruction number 3 was properly refused. It was equivalent to a demurrer to the evidence. (5) There is no foundation in reason for the objection to Dr. Halley's testimony, and the authorities cited do not support the objection. They deal with the competency of testimony which may tend to swell a verdict beyond compensation for the injury sustained. (6) There was no error in permitting Collins to testify as to the effect of the cable lights. The jury did not know what kind of lights they were, and the testimony as to the effect which they produced was simply descriptive of their character. He was testifying to a fact which he knew and in no sense to a conclusion or opinion of his own. Loewer v. Sedalia, 77 Mo. 431; Commonwealth v. Sturtivant, 117 Mass. 122; Wharton on Evidence [3 Ed.], sec. 511. (7) The court did not err in excluding the ordinance prohibiting driving "faster than a moderate gait." The ordinance fixed no prohibited rate of speed. Even if the ordinance had fixed a definite rate which must not be exceeded, the violation of it would not have precluded a recovery unless it contributed to the accident. (8) If the defendant had desired the attention of the jury directed specifically to the rate of speed at which Weller was driving it should have requested further instruction upon that point. Doyle v. Railroad, 20 S.W. 970. (9) Whether Weller was exercising ordinary care when injured was a question for the jury. Roddy v. Railroad, 104 Mo. 234; Kenney v. Railroad, 105 Mo. 285; Huhn v. Railroad, 92 Mo. 440; Nagel v. Railroad, 75 Mo. 653.

Macfarlane, J. Brace, J., not agreeing to what is said in the second paragraph.

OPINION

Macfarlane, J.

-- Plaintiff sues to recover damages on account of the death of her husband, caused, as is alleged, by negligence of defendant. The accident resulting in the death of plaintiff's husband occurred on December 6, 1887, at a point on Fifteenth street, in Kansas City, where it is crossed by the Belt Line Railroad, and by a train of cars operated by defendant over that road. The trial resulted in a judgment against defendant for $ 5,000, and it appealed therefrom.

The negligence charged...

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