Leduke v. St. Louis & I.M.R. Co.
| Decision Date | 20 November 1877 |
| Citation | 4 Mo.App. 485 |
| Parties | EUPHROSINE LEDUKE, Respondent, v. ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
1. Where one, at the very moment when he knows a train is expected to arrive, goes upon a railroad track in front of an approaching train, which, by the proper exercise of his faculties, he must have seen and heard, the mere fact that the locomotive bell was not sounded as required by law will not make the railroad company liable for any damages which may result.
2. Where plaintiff seeks to hold defendant liable for an injury done, the burden is on him to show that defendant's negligence was the direct and proximate cause of the injury and where the undisputed evidence shows that, though defendant was negligent, the causes which operated directly to produce the injury complained of are attributable to the plaintiff himself, there can be no recovery.
3. Where the issue made by the pleadings, and upon which the case was tried, was whether the injury was attributable to the failure of defendant to signal the approach of a train and the undisputed evidence shows that it was not attributable to this cause, a verdict for plaintiff will be set aside as being without evidence to support it, though there be evidence tending to show that, but for the negligence of defendant in not reversing the engine, the injury might have been avoided.
4. Under a general allegation of negligence plaintiff cannot recover. Where the proof does not correspond with the allegations of the petition, plaintiff should ask leave to amend during the trial.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.
THOROUGHMAN & WARREN, for appellant, cited: 64 Mo. 480, 487.
A. J P. GARESCHÉ and S.W. LEAHY, for respondent, cited: Kennerzoc v. Pacific R. Co., 45 Mo. 62; Morris sey v. Wiggins Ferry Co., 47 Mo. 523; Keegan v. Kavanaugh, 62 Mo. 230.
This is an action, under the statute, to recover damages for the death of plaintiff's husband, who was killed by a locomotive of the defendant, near where its track crossed Olive Street, in Carondelet. The deceased, Leduke, had for several years before his death lived in a house just east of the track, near this crossing, and diagonally opposite to his house, across the railway tracks, was a depot. To go to this depot, in the rear of which was a well, where he got his water, Leduke would pass up Olive Street, and in doing so was obliged to cross three railway tracks which intersected that street. At about eight o'clock in the morning of September 6, 1872, Leduke started with two buckets to get water, and found the east and centre tracks, which he had to pass, blocked by lines of stationary freight cars, which extended across the street, and for a considerable distance up and down the two tracks. The plaintiff's evidence tends to show that these cars, which were all coupled, had blocked the street up which Leduke wished to pass, for about an hour; and, after waiting awhile, he climbed over the cars on the east, and got under the cars on the middle track. He came out from under the latter, on a platform which lay between the middle and west, or main, track, and, holding his bucket, or buckets, crossed this centre platform, and then attempted to cross the main track, which was between him and the depot platform. Up this main track, on its way to St. Louis, was coming a passenger train, the locomotive of which struck Leduke, apparently just before he had stepped over the last rail, as he was not run over, but thrown against the platform on the depot side of the track. It was a clear day, and the sun was shining.
Voerg, a witness for the plaintiff, who, from the depot side, saw the whole occurrence,--and whose evidence as to facts now essential does not differ from that of the other witnesses in the case who saw Leduke just before and at the time the latter stepped upon the track,--testifies as follows: * * * " The train was about ten to twelve feet off when he started across." The witness's evidence tends also to show that the middle platform was five or six feet wide, and almost level with the rails; that this train usually arrived at this station, near where Leduke lived, at about the true time, and always stopped there; that there was nothing to prevent Leduke's walking along the platform, and remaining in safety on it, between the tracks; that, to a person looking down the main track, from Leduke's position, that track was visible for half a mile. The plaintiff's evidence tended to show that no bell was rung, or signal given, except that, immediately before Leduke was struck, short, sharp whistles were sounded; that, as the train approached, the noise made by it was audible while the train was a considerable distance off.
The testimony of defendant's witnesses, who saw Leduke just before and when he went upon the track, tended, like that of Voerg, to show that Leduke was in safety when he was on the middle platform, and that if he had looked down the main track and listened he could have seen and heard the train while it was at a considerable distance from where he stood that he started to cross the main track when the locomotive was at a very short distance from him. The expression of one of these witnesses is: " It seemed to me that as he stepped upon the track the engine struck him." Another says that it was only a moment between the time he started to go across and the time he was struck. It appears that the train was about to stop at the station when Leduke was struck; and, after striking him, moved but a very short distance before it stopped at the station. The defendant demurred to the evidence. The demurrer was overruled, instructions given, which need not be set out, and a...
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