25 S.W. 943 (Mo. 1894), Bluedorn v. the Missouri Pacific Railway Company

Citation:25 S.W. 943, 121 Mo. 258
Opinion Judge:Burgess, J.
Party Name:Bluedorn v. The Missouri Pacific Railway Company, Appellant
Attorney:John T. Cochran and H. S. Priest for appellant. Z. J. Mitchell for respondent.
Judge Panel:Burgess, J. Sherwood, J., does not concur in the first paragraph of the opinion, and is of the opinion that the judgment should be reversed without remanding the cause.
Case Date:March 24, 1894
Court:Supreme Court of Missouri
 
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Page 943

25 S.W. 943 (Mo. 1894)

121 Mo. 258

Bluedorn

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

March 24, 1894

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Reversed and remanded.

John T. Cochran and H. S. Priest for appellant.

(1) A verdict upon the pleadings and the evidence should have been directed for the defendant upon the grounds: First, of his contributory negligence; second, of the failure to associate in causal relation the speed of the train, and the plaintiff's injury. (a) Plaintiff admits that it was his positive duty to watch for and keep out of the way of this train as well as all others; that it was plain to be seen, at least, one hundred and twenty feet away; that he only saw it because its presence was forced upon him, and that he stepped upon the track when it was immediately upon him. This, coupled with the evidence of Carey, his own witness, to the fact that he stepped upon the track within ten or fifteen feet of the approaching train, is conclusive of his disregard of the duty which he recognizes himself, and his concurring negligence. Bluedorn v. Railroad, 108 Mo. 439; Taylor v. Railroad, 86 Mo. 458; Yancy v. Railroad, 93 Mo. 433. (b) If the plaintiff stepped upon the track so closely in front of the engine as, if running at a rate of speed of six miles per hour, it could not have been stopped, or so checked as to avoid the injury, then the excess of speed above that rate was not a cause. The evidence, beyond controversy, shows this to be the fact. Jennings v. Railroad, 99 Mo. 399; Hanlon v. Railroad, 104 Mo. 387; Wharton on Neg., secs. 302, 303, 323, 324. (2) The court erred in giving instruction number 1, of the plaintiff's series. Whether the court intended the presumption specified in the instruction to have the effect of a legal presumption or an inference of fact, is not disclosed by anything in the context. In either aspect, it is wrong. It would not be an incontrovertible legal presumption. If an inference from facts proved, it falls entirely within the province of the jury. Lynch v. Railroad, 20 S.W. 642; Moberly v. Railroad, 98 Mo. 183; Wharton on Crim. Ev. [9 Ed.], sec. 207; Ins. Co. v. Weide, 11 Wall. 440. (3) The court erred in refusing to give instruction number 3 asked by the defendant. There was abundant evidence upon which to predicate it, and it contains sound legal propositions. Abbott v. McCadden, 51 N.W. 1079; Bengston v. Railroad, 50 N.W. 531; Roddy v. Railroad, 104 Mo. 234. (4) Instructions numbers 2 and 4 given and number 3 given, as modified by the court, assumed uncontradicted facts, and the action of the jury in returning a verdict against their direction, is such a palpable outrage as to indicate either gross imbecility, corruption or a blind and ungovernable prejudice against corporations, and for this reason, the verdict should be reversed. (5) The court erred in giving the pleadings to the jury to take with them when they retired to consider their verdict. The jury have nothing on earth to do with the pleadings. Bryan v. Railroad, 63 Iowa 464; Butcher v. Death, 15 Mo. 270; Harrison v. Hance, 37 Mo. 187; Flishman v. Miller, 38 Mo.App. 181; Proctor v. Loomis, 35 Mo.App. 488; Grant v. Railroad, 25 Mo.App. 232; Crocker v. Crocker, 2 Mo.App. 458; Hollis v. Ins. Co., 21 N.W. 774; Willis v. Forest, 2 Duer, 310; Drew v. Andrews, 8 How. 23; Garfield v. Knight, 14 Cal. 35. (6) The damages awarded by the jury are grossly excessive. (7) The court erred in refusing defendant's offer to prove that the business of its yards could not be done if it was required to conform to a maximum speed of six miles per hour.

Z. J. Mitchell for respondent.

(1) The instructions given in the case fairly presented the law to the jury and the latter is the sole judge of the weight and import of the evidence. Burger v. Railroad, 112 Mo. 250; Roddy v. Railroad, 104 Mo. 234. (2) All the questions raised by appellant were passed on in the former appeal and are res judicata.

Burgess, J. Sherwood, J., does not concur in the first paragraph of the opinion, and is of the opinion that the judgment should be reversed without remanding the cause.

OPINION

Page 944

[121 Mo. 261] In Banc

Burgess, J.

This is an action for personal injuries. The case was before this court on a former appeal, and will be found reported in 108 Mo. 439, in which the facts as disclosed at the trial in the circuit court are stated by Black, C. J., as follows:

"This is an appeal prosecuted by the defendant from a judgment in favor of plaintiff in a personal damage suit. The plaintiff was injured by a passenger train, while in the employ of the defendant as a night switchman, so that it became necessary to amputate his leg between the knee and ankle. He founds his action on the violation of an ordinance of the city of St. Louis, which limits the rate of speed of trains to six miles per hour.

"The plaintiff had been engaged in railroad work for thirteen years, eleven years of that time in the capacity of a conductor on another road entering the city of St. Louis. He had been in the employ of the defendant as night switchman at the defendant's Seventeenth street yards in St. Louis for five nights preceding the night on which he received the injuries of which he complains. The accident occurred at night, between ten and eleven o'clock at a point near the Eighteenth street bridge. The Seventeenth street yards are just east of the Eighteenth street bridge. There is what is called a lead track extending from the Seventeenth street yards westward on a curve to the north under the bridge, and thence westward on a curve to the south, but the degree of these curves is not stated. There are three tracks passing under the bridge; the [121 Mo. 262] first or south one is this lead track; the next one north of it is...

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