36 S.W. 667 (Mo. 1896), Prewitt v. Missouri, Kansas & Texas Railway Company

Citation:36 S.W. 667, 134 Mo. 615
Opinion Judge:Burgess, J.
Party Name:Prewitt v. Missouri, Kansas & Texas Railway Company, Appellant
Attorney:Jackson & Montgomery for appellant. Chas. E. Yeater and Waller & Rodes for respondent.
Judge Panel:Burgess, J. Brace, C. J., Macfarlane, Barclay, and Gantt, JJ., concur. Sherwood and Robinson, JJ., dissent. Brace, C. J., Macfarlane, Barclay, and Gantt, JJ., concur. Sherwood and Robinson, JJ., dissent.
Case Date:June 15, 1896
Court:Supreme Court of Missouri
 
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Page 667

36 S.W. 667 (Mo. 1896)

134 Mo. 615

Prewitt

v.

Missouri, Kansas & Texas Railway Company, Appellant

Supreme Court of Missouri

June 15, 1896

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

[134 Mo. 619] 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 [134 Mo. 620] 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...

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