Prewitt v. Missouri, Kansas & Texas Railway Company

Decision Date15 June 1896
PartiesPrewitt v. Missouri, Kansas & Texas Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Jackson & Montgomery for appellant.

(1) The judgment of this court on the former appeal is conclusive of the questions then decided. Bank v. Taylor, 62 Mo 388; Adair Co. v. Ormby, 75 Mo. 282; Gaines v Fender, 82 Mo. 497; Chouteau v. Gibson, 76 Mo 38; Rice v. McFarland, 41 Mo.App. 489; McKinney v. Harral, 36 Mo.App. 338; Hombs v. Corbin, 34 Mo.App. 394; Belch v. Miller, 37 Mo.App. 628. (2) The same state of facts presented on this appeal, were held on the former appeal to constitute contributory negligence which would prevent a recovery. Prewitt v. Eddy, 115 Mo. 283. The same principle as decided in this case was declared by the court in banc in the case of Sullivan v. Railroad, 117 Mo. 214. See, also, Moore v. Railroad, 126 Mo. 265. (3) The evidence shows that the plaintiff had both seen and heard the train approaching, and either willfully or negligently permitted the mule to carry him on the track immediately in front of the rapidly approaching train, and the engineer, after discovering plaintiff in a perilous position, did everything in his power to prevent the injury, and upon such facts plaintiff can not recover under the decision on the former appeal. Prewitt v. Eddy, 115 Mo. 283; Moore v. Railroad, 126 Mo. 265. (4) The court erred in giving plaintiff's first instruction. First. Because the only negligence attempted to be shown on the part of defendant was in running the train, which struck the plaintiff, at a rate of speed in excess of the limit prescribed by the ordinance of the city of Moberly, which did not apply to the place where the accident occurred. Second. Because the evidence clearly establishes that plaintiff went upon the track at a point so near to the approaching train that it could not have been stopped even if it had been running only six miles an hour. Kelly v. Railroad, 75 Mo. 138. Third. Because the evidence shows that plaintiff was guilty of contributory negligence. Fourth. Because the petition is founded upon the theory that plaintiff was injured in a public street, and the instruction is drawn upon a theory not relied upon in the petition. Fifth. Because it is not warranted by the evidence. For the same reasons the court erred in refusing defendant's first, third, fifth, twelfth, thirteenth, and fourteenth instructions. (5) Plaintiff's first instruction was also erroneous because it did not explain to the jury what constituted contributory negligence. Moore v. Railroad, 126 Mo. 265. (6) The verdict was not supported by the evidence, and was contrary to the instructions given. Under the instructions given, the verdict should have been for defendant upon the facts as claimed by plaintiff.

Chas. E. Yeater and Waller & Rodes for respondent.

(1) The facts of this case render defendants primarily liable under the settled law of this state, to wit: First. The violation of a city ordinance which regulates the speed of trains is negligence per se. Dahlstrom v. Railroad, 108 Mo. 538; Schlereth v. Railroad, 115 Mo. 104; Prewitt v. Eddy, 115 Mo. 283; Sullivan v. Railroad, 117 Mo. 214; Weller v. Railroad, 120 Mo. 645; Bluedorn v. Railroad, 121 Mo. 258. Second. And in cases where, if the train had been running at the speed prescribed in the ordinance, it could have been stopped after plaintiff was discovered upon the track and in peril, in time to have avoided the injury plaintiff is entitled to recover. Sullivan v. Railroad, 117 Mo. 214; Brannock v. Elmore, 114 Mo. 59; Fiedler v. Railroad, 107 Mo. 653; Keim v. Union Transfer Co., 90 Mo. 321; Hays v. Railroad, 111 U.S. 228; Railroad v. Stebbing, 19 Am. and Eng. R. R. Cases, 36; Railroad v. McDonnell, 43 Md. 534. (2) Defendant's second and third points are that under the evidence plaintiff was guilty of contributory negligence as a matter of law. Defendant's contention on this point is untenable for several reasons: First. The uncontradicted evidence shows that plaintiff, while the train was yet a quarter of a mile away, and at once, after he knew it was coming, made all haste to ride out, and get away from the approaching train. This he was in duty bound to do and it has been so held. Moore v. Railroad, 126 Mo. 265. (3) "If upon a given state of facts negligence can be clearly asserted, then the court may so declare. Such ruling can be made only where no other inference can fairly and reasonably be drawn from the facts in evidence." Barry v. Railroad, 98 Mo. 70; Wilkins v. Railroad, 101 Mo. 106; Maus v. City of Springfield, 101 Mo. 618; Bluedorn v. Railroad, 121 Mo. 266; Weller v. Railroad, 120 Mo. 641; Church v. Railroad, 119 Mo. 208; Sullivan v. Railroad, 117 Mo. 221; O'Mellia v. Railroad, 115 Mo. 220; Murphy v. Railroad, 115 Mo. 125. (4) The question of plaintiff's alleged contributory negligence was fairly submitted to the jury by a series of instructions covering its every phase and the issue was by the jury found in plaintiff's favor. Where the issue of contributory negligence is left to the jury "under proper directions and the facts found from competent evidence," it will not be assumed differently in this court. O'Mellia v. Railroad, 115 Mo. 208; Gutridge v. Railroad, 105 Mo. 529. (5) The court did not err in giving plaintiff's first instruction, nor is it erroneous because it did not explain to the jury what constituted contributory negligence. Britton v. St. Louis, 120 Mo. 444; Burdoin v. Trenton, 116 Mo. 371; State v. Reed, 117 Mo. 613; Halliburton v. Railroad, 58 Mo.App. 36.

Burgess, J. Brace, C. J., Macfarlane, Barclay, and Gantt, JJ., concur. Sherwood and Robinson, JJ., dissent.

OPINION

In Banc.

Burgess J.

This is the second appeal by defendant in this case. The first judgment was in favor of plaintiff in the sum of $ 8,500; the one from which the present appeal was taken is for the sum of $ 6,000. When the case was here on the first appeal it was heard in the second division; the judgment reversed and the cause remanded, because of errors committed by the trial court in giving and refusing instructions. 115 Mo. 283.

The suit is prosecuted to recover damages for personal injuries, sustained by plaintiff, by being run over by the cars of defendant in the negligent violation of an ordinance of the city of Moberly limiting the rate of speed of cars and locomotives propelled by steam to not exceeding six miles per hour. No objection was made to the petition. The defenses were a denial of the alleged negligence, and charges of contributory negligence.

There was no material difference in the facts disclosed at the last trial from the first, which are very fully stated by Gantt, J., in the opinion then delivered, and which it is unnecessary to restate. The plat referred to by the witness Ferris is as follows:

[SEE ILLUSTRATION IN ORIGINAL]

Over the objections of defendant the court instructed the jury in behalf of plaintiff as follows:

"1. If the jury believe and find from the evidence that on August 13, 1889, locomotive engines and trains of cars were, by an ordinance of the city of Moberly, prohibited from being run within the corporate limits of said city at a greater rate of speed than six miles per hour, and that on said day defendants, by their servants, did run an engine and train of cars, known as the tie train, within the corporate limits of said city at a place where persons were usually upon defendant's track, at a greater rate of speed than six miles per hour, and that as said train approached plaintiff's mule became frightened and unmanageable and ran away with plaintiff, and, against his will and efforts to prevent, carried him on to said railroad track at said point ahead of said train, and that in consequence of said train being run at said time and place at a greater rate of speed than six miles per hour, defendant's servants running said train were unable to stop said train after they became aware that plaintiff was on said track and in peril, in time to avoid striking and injuring plaintiff, and that had said train been running at said time and place at the rate of speed of six miles per hour, it could, by the exercise of ordinary care on the part of the defendant's said servants, have been stopped after plaintiff was discovered by them on said track and in peril, in time to have avoided striking and injuring plaintiff, then the jury may find defendant guilty of negligence, and if the jury so find the defendant guilty of negligence and further find that in direct and immediate consequence of said negligence, and without negligence on plaintiff's part contributing thereto, plaintiff was struck by said train and received the injuries complained of in his petition, then the verdict of the jury must be for the plaintiff.

"2. If the jury find for the plaintiff, then in estimating his damages, they may take into consideration all of the mental and physical pain and anguish already suffered by him and all future mental and physical pain and anguish, if any, that will result to him from said injury, also his loss of time, and the value thereof, since the date of his injury, and if the jury find that his injuries are permanent and lasting in their character and effect and that they will in the future disable him from earning money and making a support, or will impair his ability to do so, they should take these facts into consideration and should estimate the value of the time and services that he may thereby lose during his life, and the jury should assess plaintiff's damages at such sum as in their judgment will compensate him for all his losses and sufferings, both past and future, that has or will result to him by...

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