Bischoff v. People's Railway Company

• Decision Date: 24 March 1894
• Citation: 25 S.W. 908,121 Mo. 216
• Parties: Bischoff v. People's Railway Company, Appellant
• Court: Missouri Supreme Court

25 S.W. 908

121 Mo. 216

Bischoff v. People's Railway Company, Appellant

Supreme Court of Missouri, First Division

March 24, 1894

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

Affirmed.

G. A Finkelnburg for appellant.

(1) The trial court erred in refusing defendant's instruction of nonsuit offered at the close of plaintiff's case and at the close of all the evidence in the case. The evidence failed to show negligence on the part of defendant's employees and did show that the negligence of the Missouri Pacific Railway Company's employees was the cause of the accident. Kleiber v. Railroad, 107 Mo. 240; Maschek v. Railroad, 71 Mo. 276; Jackson v Hardin, 83 Mo. 175; Hunt v. Railroad, 89 Mo. 607; Holman v. Railroad, 62 Mo. 562; Railroad v. Wallen, 65 Tex. 568. (2) The court erred in not setting aside the verdict as against this defendant because it was apparent, in view of the evidence before the jury and the instructions given them by the court, that the jury disregarded said instructions (particularly defendant's instructions numbers 2 and 3), and also disregarded the evidence in rendering a verdict against the People's Railway Company. The verdict was directly against the law as laid down by the court. Kleiber v. Railroad, 107 Mo. 240. When the verdict is manifestly against the evidence and the instructions, the supreme court will interfere and reverse the judgment. Ackley v. Staehlin, 56 Mo. 558; Hearne v. Keath, 63 Mo. 84; Schmieding v. Young, 57 Mo. 78; Whitsett v. Ransom, 79 Mo. 258; Cary v. Railroad, 60 Mo. 209. (3) Every one driving a vehicle along a public street has a right, when approaching a railroad crossing, to rely on the signals which the railroad has provided as a warning to the public of the approach of trains. Whalen v. Railroad, 38 F. 15; Shankenburg v. Railroad, 46 F. 177; Sweeney v. Railroad, 10 Allen, 368; Palmer v. Railroad, 112 N.Y. 234; Oldenberg v. Railroad, 26 N.E. 1021; Lunt v. Railroad, L. R. 1 Q. B. 27; Beach on Contrib. Neg., p. 199; Wharton's Neg., sec. 337; Pierce on Railroads, 327; Kennayde v. Railroad, 45 Mo. 255; Petty v. Railroad, 88 Mo. 306. (4) Instruction number 1 on behalf of plaintiff requires a degree of diligence on the part of defendant not warranted by law. Dougherty v. Railroad, 97 Mo. 667; Gilson v. Railroad, 76 Mo. 283.

J. W. Benstein, W. E. Jones and A. R. Taylor for respondent.

(1) As shown in the statement, the evidence strongly supported the verdict, and it is really superfluous to present to the court authorities to support principles so often decided and so familiar to this court. That, if the plaintiff was, by the negligent act of the defendant carrier, placed in a position of apparent imminent peril, and in attempting to escape such peril jumped from the car and was injured, and if she acted with ordinary prudence in so taking such course, she can recover, though by remaining on the car she would have escaped injury, there is no longer any question. Kleiber v. Railroad, 107 Mo. 247. (2) The first point made by the appellant that the evidence fails to show negligence upon its part, is untenable, as shown by the evidence; none of the cases cited by appellant sustain this point. (3) The second point made for appellant is, that the trial court should have set aside the verdict, because the jury disregarded instructions (2 and 3) given for the defendant, and the evidence. There was ample evidence for the jury to have found the verdict under this instruction. This very instruction as to what a party may assume, where the evidence is contradicting, has been condemned a number of times, and its propriety doubted, even where the matter presumed was a duty prescribed by statute law. Myers v. City, 108 Mo. 487, citing Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423. As to appellant's second paragraph of its second point, it is enough to say that an appellate court in the state of Missouri can not, as contended, set aside a verdict founded upon substantial evidence, without invading the province of the jury. And much less in such a case as this, where, if the court were sitting as jurors, it is submitted they would find, as the jury did in this case, that the weight of the evidence was with the plaintiff. It is vain to site authorities for such a well settled proposition. (4) To appellant's third point all law-abiding persons may agree, and we do agree. (5) The fourth and last point of contention is that plaintiff's instruction number 1 requires too high a degree of care of the carrier. If counsel had not overlooked the application in the instruction of the words criticized, to wit: "slightest neglect of defendant, if there was such neglect, to exercise such degree of care, if such neglect caused plaintiff's injury," etc., he would not criticize. Gilson v. Railroad, 76 Mo. 287, cited for appellant, says that the degree of care for which the carrier is bound, is the "utmost care and diligence of very cautious persons" -- a much higher degree than required by this instruction. "A high degree of care, such as would be used by very prudent persons under like circumstances," etc. Dougherty v. Railroad, 97 Mo. 656. The courts of Missouri and elsewhere have consistently sustained the degree of care (or a higher) laid down in the instruction. Lemon v. Chanslor, 68 Mo. 356; Furnish v. Railroad, 102 Mo. 442; O'Connell v. Railroad, 106 Mo. 488.

OPINION

Brace, J.

This is an action for damages for personal injuries in which plaintiff obtained a judgment in the St. Louis circuit court for $ 3,000, and the defendant appeals and assigns for error, the refusal of the court to sustain a demurrer to plaintiff's evidence, its refusal to give an instruction to find for the defendant at the close of all the evidence, the giving of instruction number 1 for the plaintiff, and in not setting aside the verdict because the jury disregarded instructions numbers 2 and 3 given for the defendant.

Instruction number 1 given for the plaintiff is as follows:

"1. The court instructs the jury that, if the defendant by its servants in charge of its cars received the plaintiff as a passenger on said cars, then defendant was bound by its servants in charge of its cars to exercise a high degree of care, such as would be exercised by very prudent persons under like circumstances to carry plaintiff safely to her point of destination of defendant's line of railway. And defendant is liable for even the slightest neglect of defendant's servants, if there was such neglect, to use such care, if such neglect caused plaintiff's injury, and if plaintiff exercised ordinary care at the time of the injury."

Instructions numbers 2 and 3 given for the defendant are as follows:

"2. If the jury find from the evidence that for years prior to this accident it had been customary, and that at the time of the accident it still was the custom of the Missouri Pacific Railway Company, its agents and employees, to give warning of the approach of its trains to persons and vehicles about to cross its track at the intersection of Fourth and Poplar streets, and to give such warning by lowering its movable gates or barriers across Fourth street in time to prevent danger or collision; and if the jury further find that this custom was known to defendant's agents and employees as well as to the plaintiff and to the public generally, then the defendant's agents and servants are not to be charged with negligence from the mere fact (if the jury find such to be the fact) that they assumed the way to be clear and free from danger until such movable gates or barriers were lowered.

"3. If the jury believe from the evidence that plaintiff jumped off the car from fear of impending danger, and if the jury further find that such fear was caused by the negligence or improper conduct of the watchman of the Missouri Pacific Railway Company and not by the negligence or improper conduct of the driver or conductor of the People's Railway Company, the plaintiff cannot recover against said People's Railway Company."

The undisputed facts are that at the time the accident happened the defendant was operating a line of cable cars running north and south on Fourth street, and the Missouri Pacific Railway Company was operating a steam railway along a track running east and west on Poplar street in said city; that at the intersection of these two streets for the protection of the traveling public the railway company maintained a moveable barrier consisting of two long poles on the east side of Fourth street, one on the north and one on the south side of its track. These poles stood upright when the railroad track was clear and were lowered westwardly to a horizontal position across Fourth street when an engine or train was about to cross. They were managed by a watchman or gate keeper in the employ of the railway company and under its sole control. At night a red light was attached to the ends of the poles, which moved up and down with them. The accident occurred about half past 10 o'clock on the night of the sixteenth of May, 1890. The plaintiff's injuries were serious and permanent. At the time, an engine with headlight in front was approaching the crossing on the railway track on Poplar street. The plaintiff was a passenger on defendant's cable cars, going south on Fourth street, and approaching the crossing. Owing to the buildings the approaching engine could not be seen from the cable cars.

She gives the...