Moore v. Kansas City & I. Rapid-Transit Ry.

• Decision Date: 22 December 1894
• Citation: 29 S.W. 9,126 Mo. 265
• Court: Missouri Supreme Court
• Parties: MOORE v. KANSAS CITY & I. RAPID-TRANSIT RY.

29 S.W. 9

126 Mo. 265

MOORE v. KANSAS CITY & I. RAPID-TRANSIT RY.

Supreme Court of Missouri, Division No. 2.

December 22, 1894.

STREET-RAILWAY COMPANY — FRIGHTENING HORSES — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. A street-railway company's right to use that part of the street occupied by its tracks is paramount to the right of a person driving thereon.

2. When a car is being operated, a street-railway company must exercise reasonable care to discover persons on or dangerously near the tracks.

3. One driving along a street, beside railroad tracks thereon, with knowledge that a train was likely to pass, and that his horses were afraid of cars, cannot recover for injuries caused by the frightening of the horses; he having had an opportunity to remove them to a safe distance, and failing so to do.

4. Where one driving along a street beside defendant's railway tracks was injured by his horses taking fright at a passing train, he may recover, though in some degree negligent, if defendant could, by the exercise of ordinary care, have prevented the injury.

5. It is only when a person's negligence contributed directly to his injury that it precludes his recovery of damages therefor.

6. In a personal injury suit, it was error to give an instruction regarding plaintiff's contributory negligence which failed to set forth the facts necessary, under the evidence, to constitute such negligence.

Appeal from circuit court, Pettis county; Richard Field, Judge.

Action by G. W. H. Moore against the Kansas City & Independence Rapid-Transit Railway to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Among other instructions requested by plaintiff and given by the court was the following, viz.: "(2) The court instructs the jury that the burden of proving contributory negligence on the part of plaintiff rests upon the defendant, to show to the satisfaction of the jury, by a preponderance of the evidence, that the plaintiff at the time of the injury was guilty of some negligent act or acts which directly contributed to produce the injury complained of, and that such act or acts were such that an ordinarily prudent person would not have done under the same or similar circumstances; and, unless you so find, your verdict on the issue of contributory negligence should be for the plaintiff."

Karnes, Holmes & Krauthoff, for appellant. W. J. Hollis and Mr. Lithgow, for respondent.

BURGESS, J.

Action for personal injuries, begun in the circuit court of Jackson county. The venue was subsequently changed to the circuit court of Pettis county, on application of plaintiff, where, on trial to a jury, plaintiff's damages were assessed at $2,640. Defendant appeals.

The petition is in two counts. The first alleges that defendant was operating a line of railway from Kansas City to Independence, Mo.; "that on or about the 10th day of February, 1891, plaintiff was, with his wagon and team, traveling along and upon a street in the city of Independence, along the side of defendant's railroad track; that, while he was so traveling, one of defendant's trains of cars, going in a westerly direction, and approaching the place where plaintiff and his team was, did negligently and unnecessarily and carelessly manage said engine and cars so as to cause plaintiff's team to take fright, and shove or back his wagon close to, upon, and against the track of defendant, placing plaintiff and his wagon in great peril, when, then and there, defendant, by its servants operating said engine and train, did carelessly and negligently run the same against the wagon of plaintiff, breaking the same, and throwing the plaintiff out upon the street," and injuring him. "Plaintiff avers that the servants of defendant, managing said train, saw plaintiff, or by the exercise of ordinary care and diligence could have seen him, in said perilous position, in time to have avoided the injury, by the exercise of reasonable care on the part of the management of said train." The second count seeks to recover damages to plaintiff's wagon, and the loss of some kerosene oil therein, occasioned by the same accident which caused the injuries to his person complained of in the first count. The answer of defendant was a general denial of the allegations of the petition; a plea of contributory negligence, "which negligence consisted in his driving a team of horses, which he knew were easily frightened by the cars, on and along defendant's right of way, at a time when he knew, or by the exercise of ordinary care might have known, that defendant's train was liable at any time to pass, and that he failed to drive off said street as he should have done, and that in consequence of such negligence his team became frightened, and the accident, and whatever damages plaintiff sustained to his person or property, were occasioned thereby." Plaintiff replied, denying the new matter set up in the answer.

In order that the facts may be better understood, reference may be had to the following map:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It will be observed that Clark street and Grove street run east and west; that Lexington street runs in a northeasterly direction, and a little west of the center of it. Under permission from Independence, defendant's tracks are laid along said street. From Clark street to Grove street the trains of defendant go towards Kansas City, which is west of Independence. On February 11, 1891, a train of defendant was going from independence to Kansas City, and stopped at Clark street station. About the same time, plaintiff was driving a light spring wagon, with two horses, on the east side of Lexington street and of defendant's track, at a point south of the alley. He was going in a northeasterly direction, and the train was going southwest. As the train and plaintiff's team neared each other, the plaintiff's horses became frightened at the approach of the train. Plaintiff's contention was that his wagon was backed on the track of the defendant, and that the servants of defendant in charge of the train saw, or by the exercise of ordinary care might have seen, his wagon on the track, or being backed on the track, in time to have stopped the train, but that defendant's servants in charge of the train negligently ran the train against plaintiff's wagon, throwing him to the ground and injuring him, breaking his wagon, and spilling the oil therein. Defendant's evidence was that its train never struck plaintiff's wagon at all, that his wagon was turned over by his horses, and defendants' engine did not even touch plaintiff's wagon. It appeared from plaintiff's own testimony that the trains of defendant usually consisted of a dummy engine and two cars; that, a day or two before the accident, plaintiff's horses had scared at a train of cars, and that he knew it. The courthouse square in Independence is the eastern terminus of defendant's road, and the point where the accident occurred is a short distance west of the square. The trains of defendant, in going east, passed the point of the accident, and went to the square.

The first instruction given in behalf of plaintiff is as follows: "(1) The court instructs the jury that the railroad track of defendant where the injury, if any, occurred, was laid in a public street of Independence, Mo.; that the plaintiff had as much right to the use of said street for the purpose of travel, in the carrying on of his business, as did the defendant. It was the duty of both to so conduct themselves in the use of said street as not to injure the other in the exercise of his rights, if the same could be done by the exercise of the diligence required of prudent persons under the same or similar circumstances; and if you believe from the evidence that the team of plaintiff became unmanageable, and began backing his wagon towards the track of defendant, and that defendant's train struck the same, and caused the injury complained of, and you further find from the evidence that the servants of defendant operating said train saw plaintiff's team so from under his control, and backing himself and wagon towards the track and into peril, or by the exercise of reasonable care, caution, and prudence on their part, might have seen plaintiff in or going into peril, if he was in or going into peril, in time to have prevented the injury, if any, by the exercise of every reasonable exertion on their part in stopping or slacking the speed of the train, without injury to the train or the passengers thereon, and you further find that they failed to perform this duty, then defendant was guilty of negligence; and if you...