Payne v. Chicago & A. R. Co.

• Citation: 129 Mo. 405,31 S.W. 885
• Court: United States State Supreme Court of Missouri
• Decision Date: 25 June 1895
• Parties: PAYNE v. CHICAGO & A. R. CO.

31 S.W. 885

129 Mo. 405

PAYNE v. CHICAGO & A. R. CO.

Supreme Court of Missouri.

June 25, 1895.

ACTION AGAINST RAILROAD COMPANY — INJURY TO CHILD ON TRACK — UNLAWFUL RATE OF SPEED — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. Whether negligence in running a train at an unlawful rate of speed was the proximate cause of an injury to one on the track, occurring contemporaneously therewith, — the evidence failing to show another cause, — is a question for the the jury.

2. Any contributory negligence which is a proximate cause of an injury is sufficient to defeat a recovery, though the co-operating negligence of defendant was negligence per se, such as the violation of an ordinance or statute.

3. In an action for personal injuries, an instruction that, to excuse defendant from liability, it is not sufficient that plaintiff was simply guilty of negligence, but that "the negligence of plaintiff, and not that of defendant, must be the proximate * * * cause of the injury," was erroneous, as implying that contributory negligence, to defeat recovery, must be the sole proximate cause of the injury.

4. It is for the jury to determine whether a colored boy, 11 years old, in crossing a railroad track, looked for an approaching train with that degree of care reasonably to be expected of one of his age and intelligence.

5. Where it appeared that plaintiff lived within four blocks of the railroad crossing at which he was run over, and that at the time of the accident the train, which was a regular, scheduled one, was moving at its usual rate of speed, though such rate was greater than allowed by ordinance, an instruction that plaintiff had a right to presume that defendant would not run its train at an unlawful rate of speed was erroneous, such presumption being rebutted by the evidence.

6. Where plaintiff testified that in crossing a railroad track he looked, but failed to see any train, and did not know that one was then due, an instruction that he had a right to presume that defendant would not run its train at an unlawful rate of speed was erroneous.

7. A boy 11 years of age, who, after crossing a railroad track, turns back so near a train passing over the crossing as to be struck, is guilty of negligence which will preclude recovery, though defendant was also negligent in running its cars at an unlawful rate of speed.

In banc. Appeal from circuit court, Lafayette county; Richard Field, Judge.

Action by Claude Payne, by next friend, against the Chicago & Alton Railroad Company, for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Geo. Robertson, for appellant. J. D. Shewalter, M. C. James, and John S. Blackwell, for respondent.

MACFARLANE, J.

The suit is to recover damages for personal injuries caused, as alleged, by the negligence of defendant in running one of its trains through the town of Higginsville. A trial before the court and a jury resulted in a verdict and judgment for plaintiff for $6,000, and defendant appealed.

The petition counted upon negligence in running and managing one of its trains as it passed through the town of Higginsville, and the running of said train through said town, and its public streets, at a rate of speed prohibited by ordinance. The answer was a general denial, and plea of contributory negligence. On the trial it was shown that the city of Higginsville was at the time of the accident incorporated as a city of the fourth class, and there was in force an ordinance prohibiting railroad companies from running trains within its limits at a rate of speed in excess of six miles per hour. Russell street, running north and south, is the principal street of said city, upon which most of the business is done, and upon which there is much travel by pedestrians and others. Defendant's railroad runs easterly and westerly through said town, crossing said street, and separating the business portion of the town, on the north, from a residence part of the town, on the south. Defendant's depot is on the east side of the street, the platform thereof extending to the sidewalk on the east side of the street. This sidewalk, extended, passes over the railroad, and is used by pedestrians in crossing the railroad. The railroad has two tracks crossing this street, — the main track, on the north, and the other a side track. These tracks are about six feet apart. Defendant operates over its road from Kansas City to Chicago a daily, scheduled train, known as the "Hummer." This train from Kansas City was due at Higginsville at about 8 o'clock in the evening, but did not stop there. Plaintiff was a negro boy, 11 years of age, and lived with his mother about four blocks, or a quarter of a mile, south of the railroad. On the evening of May 6th, plaintiff was sent by his mother to the post office. The Hummer from Kansas City passed through town at about the schedule time, running at a rate of speed variously estimated at from 10 to 40 miles per hour. Immediately after it passed over Russell street the cries of a boy were heard, and plaintiff was found lying between the main and side tracks, about 15 feet east of the east line of the street, with both of his legs crushed so that amputation afterwards became necessary. The train, the engineer said, was running at the rate it usually runs through there. Another witness says that it was running 30 or 40 miles per hour, — "as fast as they ever go over the crossing." It was shown that the road west from Russell street was comparatively straight, and a train could be seen from any point on said sidewalk within 50 feet of the track, on the north side, for a distance of from three to five hundred yards. A number of witnesses standing near the track saw this train that distance. The headlight was burning, the whistle was sounded, and the engine bell was kept ringing, as the train approached. Plaintiff testified that he had been to the post office, and on returning, when he got to the railroad, he looked up and down the track, saw no train, started across the track, and the train hit him. On cross-examination he testified, further, that he lived on the south side of the railroad, and had been over the town, and across the railroad, many times before. Came from the post office along the walk on the east side of Russell street. Stopped and looked for a train as he went to the post office. As he returned, when within four or five feet of the track, he looked for the train. Was struck when crossing. Did not know whether he had got clear across. Did not know what part of the train struck him. Did not see the train at any time. Saw no one at the crossing. Did not stop, but looked up and down the crossing, and kept on walking. Did not know a train came along about that time. Floyd Smiley, a witness for plaintiff, testified that he was 12 years old. Was news agent. Was at the depot on the occasion of plaintiff's injury. Saw the train when about the mill (which was shown to be between two and three hundred yards). He was then questioned, and his answers given: "Q. State whether or not you saw anybody attempting to cross over there. A. Yes, sir. Q. Who was it? A. I do not know. I did not know whether it was a black person, or white. Q. Was it a man or boy? A. It looked like a boy. Q. Where was he coming across? A. At Russell street crossing. Q. What became of the person that started across there? A. I don't know. I can't say. I did not see him." On cross-examination he testified: Went to the train to get papers. Stood about 50 feet from the sidewalk. Hearing the whistle and bell first attracted his attention to the train. Saw the headlight. Was looking at the train until it passed the crossing and continued. "Q. Did you see any one on the crossing? A. No, sir; I never saw any one standing still. Q. Where was this train when you saw the person go over the crossing, then? A. Just a little this side of the mill switch. Q. You saw the boy? A. Yes, sir. Q. Where did the boy cross the track? A. Right on the crossing on sidewalk. Q. How far was the train when he went off the crossing? A. About 200 feet." He testified that he was standing 4 or 5 feet from the main track, and 50 feet from the sidewalk. Noticed the train until it passed over the crossing, and saw no one struck. A number of witnesses, 8 or 10 who were within 50 feet, some nearer, and who watched the train pass, all testified that they saw no one on the crossing when the train got to it. No witness saw plaintiff struck. One witness testified that as the train came up he saw a colored boy running on the sidewalk, from the south, towards the track, but the train came between him and the boy, and he saw no more of him. Another witness testified that as the train was going over the walk, looking under it, he saw a boy on the south side of the train "making motions, and seemed like he was catching to the train or something." Two witnesses testified that when they got to the boy they asked him how he got hurt, and he answered that he was holding out his hand to the train, and it ran over him. At the close of all the evidence, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.

The court gave 9 instructions for plaintiff, and 13 for defendant. We only give those which merit special consideration. These two were given at request of defendant: "No. 5. The court instructs the jury, if they believe from the evidence in the case that plaintiff was not struck by the engine, and was in a place of safety when it passed him, but after it had passed him, and while he was by the defendant's track, he came so near the said train, and was struck and injured by any part of it, then he cannot recover, and the verdict of the jury will be for the defendant." "No. 7. The court instructs the jury that although they may believe from the evidence in the case that the plaintiff, while on Russell street, and when within 3 or 4 feet or nearer to the defendant's track, looked up...