McManamee v. Missouri Pac. Ry. Co.

• Citation: 135 Mo. 440,37 S.W. 119
• Parties: McMANAMEE v. MISSOURI PAC. RY. CO.
• Decision Date: 07 October 1896
• Court: United States State Supreme Court of Missouri

37 S.W. 119

135 Mo. 440

McMANAMEE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

October 7, 1896.

PLEADING — NEGLIGENCE — RAILROADS — PERSONAL INJURY — CONTRIBUTORY NEGLIGENCE — STATUTORY SIGNALS.

1. Where a general allegation of negligence in a petition is followed by an enumeration and averment of specific acts, the plaintiff is confined to proof of the acts so specified.

2. In an action to recover for the negligent killing of a person who was struck by a railway train, where the evidence showed that the deceased went upon the track immediately in front of the approaching train, an instruction fully defining contributory negligence is proper.

3. An instruction that if deceased went upon a railroad track, after he saw a train approaching and could have avoided injury, for the purpose of saving his horse and buggy from being struck by the train, and in so doing was himself struck and killed, there could be no recovery for his death, is a correct statement of the law.

4. A jury were properly instructed that it was negligent for a deceased to leave a horse, attached to a buggy, standing, without being tied, in the immediate vicinity of a railroad track, and that if in consequence of such act the horse went upon the track, and the deceased was struck and killed in attempting to save it, he was guilty of negligence contributing to the injury.

5. The sounding of the whistle or the ringing of the bell on a railway locomotive, when required by a statute or an ordinance, is for the purpose of giving warning of the approach of the train; and, where a person injured by a train saw it approaching in time to have avoided danger to himself, it is immaterial, in an action to recover for such injury, whether the signals required by law were given or not.

Appeal from circuit court, St. Louis county; W. W. Edwards, Judge.

Action by Mary A. McManamee against the Missouri Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

A. R. Taylor, for appellant. Martin L. Clardy and Henry G. Herbel, for respondent.

GANTT, P. J.

John McManamee was struck by a locomotive engine of the Missouri Pacific Railway Company near the junction of Poplar street and the levee in the city of St. Louis on the 31st day of January, 1891, and died from the injuries thus received. This action is by his widow, Mrs. Mary A. McManamee, and is founded on the alleged negligence of the company, in negligently managing and controlling its said engine and train attached thereto, and violating an ordinance forbidding the company to run its cars at a speed exceeding six miles an hour along said streets, and neglecting to cause the bell on said engine to be rung constantly while running along said streets, and failing to have a watchman at the intersection of said streets to warn persons of the approach of its trains. The defense was a general denial, plea of contributory negligence, and that the ordinance regulating the speed to six miles an hour was void. The evidence tended to prove that plaintiff was the wife of deceased; that deceased was killed by a train of defendant on its track on Poplar street; that the levee and Poplar street are public streets of said city. On the day deceased was killed he went with a single horse and wagon to get some bricks lying on the levee, near the western curb thereof, and about 80 feet from where defendant's track curved from the levee west up Poplar street. While deceased was loading the bricks into his wagon, the horse was not hitched in any way, and started to walk away, and then quickened its pace to a trot northward. The deceased immediately pursued and overtook the horse upon defendant's track, on the curve. The horse, on reaching the track, turned west, with the track, into Poplar street, and continued along or on the defendant's track. Deceased crossed from the south side of the track to the north side, and reached the head of the horse, caught the bit or rein, and endeavored to get him off the track, when an engine attached to defendant's train, and pulling about 25 freight cars, struck the rear end of the wagon, and threw it to the south side of the track, and crushed it. The horse either broke loose, or was torn loose by the collision, and escaped without injury up Poplar street. Deceased was caught by the cylinder of the engine on the north side, thrown down, and dragged about 30 feet by the side of the engine as it moved west, and was either dropped, or pulled out by some bystanders. The engine and train were moving at a greater speed than 6 miles an hour. There was ample evidence that the bell was not constantly rung as required by ordinance. There was also evidence that the engineer was warned to stop while the engine was 190 feet from deceased, and also that the deceased, who was a man of nearly 60 years, was warned to keep off the track, but that he paid no attention to it, but hurried to catch the horse, and while pulling at the horse was struck and killed. The evidence tended to show that he went on the track only a few feet in advance of the approaching engine, which could have been readily seen by the exercise of ordinary care. The verdict of the jury was for the defendant, and plaintiff, after an unsuccessful motion for new trial, appealed to this court. This cause has been on file since September, 1892, but counsel have continued it from time to time until this term, and have only favored us with briefs since the last call of the docket. There can be little excuse for such delays. Appeals prosecuted in good faith should be followed with more industry. The grounds upon which a reversal of the judgment is sought are alleged errors in the instructions. The instructions are as follows:

The court, at the request of the plaintiff, gave the following instructions to the jury: "(1) The court instructs the jury that the ordinance of the city of St. Louis, read in evidence, in relation to the speed of defendant's train, and the ringing of the bell, was in force at the time of the injury to John McManamee and that defendant at said time had no legal right to run its said train, at the place of the injury, at a greater rate of speed than six miles per hour; and if defendant was at said time running its said train at a higher rate of speed than six miles per hour, and did thereby directly cause the injury and death of said McManamee, and if the jury...