Lamb v. Missouri Pacific Railroad Company

• Decision Date: 13 December 1898
• Parties: Lamb et al., v. Missouri Pacific Railroad Company
• Court: Missouri Supreme Court

48 S.W. 659

147 Mo. 171

Lamb et al., v. Missouri Pacific Railroad Company

Supreme Court of Missouri

December 13, 1898

Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.

Affirmed.

R. T Railey and Martin L. Clardy for appellant.

(1) Under plaintiff's own admissions, the undisputed testimony, and the physical facts, this court should, as a matter of law, declare that plaintiff was guilty of negligence directly contributing to her own injury, and is not entitled to recover. Payne v. Railroad, 136 Mo 562; Culbertson v. Railroad, 140 Mo. 35; Huggart v. Railroad, 134 Mo. 679; Watson v. Railroad, 133 Mo. 251; Lane v. Railroad, 132 Mo. 4; Kelsay v. Railroad, 129 Mo. 362; Loring v. Railroad, 128 Mo. 358; Hayden v. Railroad, 124 Mo. 566; Boyd v. Railroad, 105 Mo. 381; Weber v Railroad, 100 Mo. 199; Lenix v. Railroad, 76 Mo. 90; Powell v. Railroad, 76 Mo. 83; Harlan v. Railroad, 64 Mo. 483; 4 Elliott on Railroads, sec. 1703; Gardner v. Railroad, 56 N.W. 603; Moore v. Railroad, 56 N.W. 430; Railroad v. Ross, 19 S.W. 837; Railroad v. Brown, 21 S.W. 425; Houghton v. Railroad, 58 N.W. 314; Connolly v. Railroad, 32 N.E. 937; Winslow v. Railroad, 42 N.E. 1133; Oleson v. Railroad, 42 N.E. 739; Nelson v. Railroad, 60 N.W. 703; Railroad v. Stick, 143 Ind. 449; 3 Elliott on Railroads, secs. 1165, and 1166. (2) Even in criminal cases, cases involving liberty or life, if a party testifies directly in the face of, and in opposition to, obvious physical facts, neither courts nor juries are bound to stultify themselves by giving credence to such testimony. Payne v. Railroad, supra; State v. Anderson, 89 Mo. 332; State v. Bryant, 102 Mo. 24; State v. Turlington, 102 Mo. 642; State v. Nelson, 118 Mo. 124; State v. Brown, 119 Mo. 527. To the like effect, see 4 Elliott on Railroads, section 1703, and cases cited. Myers v. Railroad, 24 A. 747, was approvingly cited and quoted from by Macfarlane, J., in Kelsay v. Railroad, 129 Mo. 362, where the controlling circumstances were virtually the same, in legal effect, as in the case before us. Of the same substantial import is Hayden v. Railroad, 124 Mo. 566. See, also, Lane v. Railroad, 132 Mo. 4. (3) Plaintiff, by the exercise of ordinary care, could have discovered the engine and tender approaching her from the east, in time to have avoided the injury, before the passenger train came in. She was, therefore, guilty of negligence, and is not entitled to recover in this action. Kelsay v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 573; Huggart v. Railroad, 134 Mo. 679. (4) If the smoke obstructed plaintiff's view of the engine and tender which struck her, it was her plain duty to have waited, before stepping upon the track, until this temporary obstruction passed away. Oleson v. Railroad, 41 N.E. 737; Heaney v. Railroad, 112 N.Y. 127; M'Crory v. Railroad, 31 F. 531; Lortz v. Railroad, 31 N.Y.S. 1033; Railroad v. Ewan, 55 N. J. L. 574; Beynon v. Railroad, 168 Pa. St. 642; Mills v. Railroad, 39 N.Y.S. 280; Tierney v. Railroad, 51 N.W. 176; Railroad v. Fisher, 55 Am. and Eng. R. R. Cas. 228; Stewart v. Railroad, 29 N.E. 917; Connolly v. Railroad, 32 N.E. 937; Foran v. Railroad, 19 N.Y.S. 417; Kraus v. Railroad, 139 Pa. St. 272; Hauser v. Railroad, 147 Pa. St. 440; Whalen v. Railroad, 15 N.Y.S. 941; Marty v. Railroad, 35 N.W. 670. (5) Having boldly charged, in her original petition, that the smoke prevented her from seeing the engine and tender, and having testified to same in her deposition, as well as at the trial, the plaintiff should be bound by these allegations, just as conclusively as though they were incorporated in the amended petition, on which the cause was tried. Lilly v. Menke, 143 Mo. 137; Bigelow, Estop. [5 Ed.], 673, 717; McClanahan v. West, 100 Mo. 309; Brown v. Brown, 90 Mo. 184; Smiley v. Cockrell, 92 Mo. 105; Knoop v. Kelsay, 102 Mo. 291; Tower v. Moore, 52 Mo. 118; Chouteau v. Gibson, 76 Mo. 38; McGuire v. Nugent, 103 Mo. 161. (6) Not only should our instruction numbered 10 have been given, but plaintiff's instructions numbered 1 and 2 should have been refused. Plaintiff's instructions numbered 1 and 2 did not properly declare the law, for the reason, that they would only be applicable to crossings in the country and not between streets in the city and in defendant's switch yard. Davis v. Railroad, 13 Mo.App. 460; Herriman v. Railroad, 27 Mo.App. 445; Brooks v. Railroad, 35 Mo.App. 581; Trans. Co. v. Sims, 36 Mo.App. 236; McGuire v. Railroad, 43 Mo.App. 358; Houghland v. Dent, 52 Mo.App. 241; Keyes v. Bank, 52 Mo.App. 329; Bank v. Hatch, 98 Mo. 378; Harrison v. White, 56 Mo.App. 177; Hall v. Railroad, 74 Mo. 302; Johnson v. Railroad, 77 Mo. 553; Field v. Railroad, 80 Mo. 206; Carroll v. Railroad, 88 Mo. 248; Dickson v. Railroad, 104 Mo. 499; Hite v. Railroad, 31 S.W. 263; Hite v. Railroad, 32 S.W. 33; Kelsay v. Railroad, 129 Mo. 362.

W. L. Jarrott and A. L. Whitsitt for respondents.

(1) The citizen who, on a public highway or street crossing, approaches a railroad track and can neither see nor hear any indications of a moving train, is not chargeable with negligence in assuming that there is no car sufficiently near to make the crossing dangerous. He has a right to presume that in handling its cars the company will act with proper care, and the usual signals of approach will be seasonably given. Tabor v. Railroad, 46 Mo. 353. Neither seeing nor hearing the sound of a bell, for none was rung, plaintiff had the right to presume that she could pursue her course without danger. Donohue v. Railroad, 91 Mo. 363; Petty v. Railroad, 88 Mo. 319; Johnson v. Railroad, 77 Mo. 546; 4 Am. and Eng. Ency. of Law, 924. (2) Before this court can reverse the finding that plaintiff was not guilty of negligence it must be satisfied that no other conclusion than that of plaintiff's negligence in the premises is fairly deducible from the evidence, giving her the benefit of every reasonable inference that may be drawn from it. Huhn v. Railroad, 92 Mo. 440; Mauerman v. Siemerts, 71 Mo. 101; Kenney v. Railroad, 105 Mo. 285; Hanlon v. Railroad, 104 Mo. 381; Dickson v. Railroad, 104 Mo. 391; Kelly v. Railroad, 101 Mo. 67; Hilz v. Railroad, 101 Mo. 36. (3) Plaintiff was bound to use such care as would ordinarily be exercised by a reasonably intelligent person amid such surroundings. Whether she did so or not was a question of fact for the jury to determine. The jury decided that she used such care. Johnson v. Railroad, 77 Mo. 546; Kellogg v. Railroad, 79 N.Y. 72; Greany v. Railroad 101 N.Y. 419; Davis v. Railroad, 47 N.Y. 400; Randall v. Railroad, 132 Mass. 269; Tyler v. Railroad, 137 Mass. 238. (4) It was the duty of defendant to allege and prove contributory negligence as a defense before it could ask for any instructions directing a verdict for defendant. Parsons v. Railroad, 94 Mo. 294; Huckshold v. Railroad, 90 Mo. 548; Donovan v. Railroad, 89 Mo. 147; Harrison v. Railroad, 74 Mo. 364; Buesching v. Gaslight Co., 73 Mo. 219. (5) Where the crossing is that of a public street in a city or village the duty of the railroad company is increased, and the precautions necessary to constitute ordinary care are greater than would be required in the country. Pierce on Railroads, 354, 355; Biersiegel v. Railroad, 34 N.Y. 622; 4 Am. and Eng. Ency. of Law, 935; Smedis v. Railroad, 88 N.Y. 13.

BURGESS, J. Gantt, C. J., Brace and Williams, JJ., concur; Sherwood, Robinson and Marshall, JJ., dissent.

OPINION

In Banc.

BURGESS J. --

This is an action by the plaintiff Mrs. Lamb (her husband Harvey Lamb joining in the suit with her), for $ 10,000 damages for personal injuries alleged to have been sustained by her being run against, knocked down and bruised about the face, head and limbs, and her left heel and the under portion of her left foot crushed by a tender, which was attached to one of defendant's engines.

The case was tried to a jury who rendered a verdict in favor of plaintiffs assessing the damages at $ 3,000, upon which judgment was rendered. Defendant appeals.

The amended petition upon which the case was tried alleges that the injury occurred in the city of Pleasant Hill on the sixteenth day of June, 1893, under the following cir-circumstances.

"That on said day plaintiff, Jessie Lamb, was walking on the public sidewalk on the west side of the public highway and street called Wyoming street, leading from the southern portion of said city in a northwesterly direction, being one of the principal streets in said city, and which crosses said railroad in a northwesterly direction from and about one hundred yards of the defendant's depot in said city, and in the business portion thereof. While said plaintiff was in the act of crossing said defendant's railroad track at Wyoming street aforesaid, about eight o'clock and thirty minutes, on the evening of said day, it being dark and cloudy at the time, the defendant by its agents, servants and employees, while operating a locomotive engine and tender on said road at said crossing, carelessly, negligently and recklessly ran said engine and tender backwards over and against plaintiff, Jessie Lamb, and she was then and thereby struck by said tender and while on said crossing and track, and thrown down against the tires, the ties, the stones and the ground with great force and violence, the said tender and engine passing on and over plaintiff's left foot, whereby and by reason whereof her heel and under portion of her left foot was mashed and mangled; that by reason of the striking and knocking her down as aforesaid, she was wounded and bruised about the head face, chest, body and limbs, whereby and by reason whereof she was seriously and permanently injured. That the train causing the injury consisted of a locomotive engine and tender; that said train...