Barton v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 31 March 1873
• Citation: 52 Mo. 253
• Court: Missouri Supreme Court
• Parties: WM. C. BARTON, Respondent, v. ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, Appellant.

52 Mo. 253

WM. C. BARTON, Respondent,

v.ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Dryden & Dryden, for Appellant.

I. There being no evidence of any negligence on the part of the defendant causing the injury complained of, it was the duty of the court to direct the jury accordingly.

II. The facts being agreed by the parties or found by the triers, negligence is a question of law for the court. (Sherman and Redf. on Negligence, § 11, note 3; Purvis vs. Coleman, 1 Bosw., 326; Moore vs. Westervelt, Id., 357; Dascomb vs. Buffalo and State Line R. R. Co., 27 Barb., 227; Biles vs. Holmes, 11 Ire., 19; Heathcock vs. Pennington, Id., 642; Pittsburgh & C. R. R. Co. vs. McClurg, 56 Penn. St., 300; Indianapolis & C. R. R. Co. vs. Rutherford, 29 Ind., 82.)

III. If the facts exist which are referred to the jury, by the instruction, they are upon principle, as well as upon authority, a bar to the plaintiff's action. (Todd vs. Old Colony R. R., 3 Allen, Mass., 18; S. C., 7 Allen, 207; Indianapolis & C. R. R. Co. vs. Rutherford, 29 Ind., 82; Pittsburgh & Connellsville R. R. Co. vs. McClurg, 56 Penn. St., 294; Sherm. & Redf. on Negligence, § 281, p. 318; Louisville & Nashville R. R. Co. vs. Sickings, 5 Bush. (Ky.) 1.)

Cline, Jamison & Day, for Respondent.

The law is fully settled in this State, that the question of negligence is a question of fact to be submitted to the jury. (Kennedy vs. N. M. R. R., 36 Mo., 351; Hulsenkamp vs. Citizens Railroad Company, 37 Mo., 537; Winters vs. H. & St. Joseph R. R. Co., 39 Mo., 468; McPheeters vs. H. & St. Jo. R. R. Co., 45 Mo., 22; Morrissey vs. Wiggins Ferry Co., 43 Mo., 380.)

EWING, Judge, delivered the opinion of the court.

This is an action for damages for an injury received by the plaintiff while a passenger on one of defendant's cars. The evidence tended to prove that when injured the plaintiff was sitting in the rear car of the train, at or near an open window, and that the injury to his arm was caused by the car coming in contact with a wagon loaded with a skiff among other things. As to the position of his arm at the time, whether inside or protruded out of the window, the evidence was somewhat conflicting.

There was a verdict and judgment for the plaintiff, and a motion for a new trial being overruled, the cause is brought to this court by appeal.

The court gave the following instructions to the jury at the instance of the plaintiff.

1. If the jury find that plaintiff was injured as charged in the petition, while being transported as a passenger in defendant's car from the city of St. Louis to the town of Carondelet, and that it was caused by the carelessness of defendant's agents and servants in running, conducting and managing said car or the train to which it was attached, without any fault, misconduct, or negligence on the part of plaintiff immediately contributing thereto then they must find for the plaintiff.

2. Although plaintiff may have failed to exercise ordinary care and prudence, while a passenger on defendant's car, which may have contributed remotely to the injury complained of, yet if the employees of defendant were guilty of negligence, which was the direct and immediate cause of the injury, and might have prevented it by the exercise of prudence and care, the defendant is liable.

The court refused to give the following instructions asked by defendant.

1. That although the jury may find from the evidence, that the plaintiff while riding as a passenger in defendant's car was injured, by having his arm broken, yet if they further believe from the evidence, that at the time such injury happened the plaintiff's said arm was by the inadvertence of the plaintiff protruded through and out of the window of the said car, and that but for his said arm being thus out of said window, the plaintiff could not and would not have received the injury complained of, the verdict should be for the defendant.

2. The court instructs the jury, that although they may believe from the evidence, that the plaintiff while riding as a passenger in defendant's car was injured by having his arm broken, yet if they further believe from the evidence, that at the time such injury happened plaintiff's arm was by the inadvertence or carelessness of plaintiff protruded through and out of the window of said car, and that plaintiff was guilty of negligence in thus placing his said arm, contributing directly to the injury complained of, the verdict should be for the defendant.

The court gave the following instruction namely:

That although the plaintiff was injured by having his arm broken, yet if at the time of said injury, plaintiff by negligence or carelessness had his arm out of the window of said car, and that such negligence or carelessness contributed directly to the happening of such injury, the verdict should be for the defendant.

The principal question arises upon the first instruction asked by the defendant; whether the hypothetical facts of that instruction constituted negligence in se and barred a recovery. The instruction virtually assumes that it was immaterial in what manner or from what cause the collision which produced the injury occurred; that the protrusion of the arm of plaintiff out of the car-window was negligence, which must defeat the action, if in the language of the instruction the injury could not and would not have happened but for this act of the plaintiff.

It also assumes that there was no evidence of negligence on the part of the defendant or its employees; that the fact of an obstruction being on or near the track was not to be considered by the jury in passing upon the question of negligence; that the defendant had no duty to perform in keeping a lookout for obstructions of this nature; that although the engineer may have seen the wagon on or near the track before the collison occurred, it was not his duty to stop the train or endeavor to do so to avoid the danger. It also assumes as immaterial the fact that the collision happened at a place on the track, and under circumstances, which were not calculated to excite any apprehension of danger in the mind of a man of ordinary prudence, who was a passenger, and situated as plaintiff was, or to call for extraordinary care on his part; and that no reasonable degree of vigilance could have foreseen or anticipated it. It also further assumes that the collision, sufficient to tear off the battings from the car, and also the hind steps of the car, could not have been the cause of the very act of the plaintiff, which is imputed to him as culpable negligence or inadvertence; that the force could not have been applied to the car in such a manner as to have irresistibly forced plaintiff's arm outside of the window; or that it could not have been an involuntary or mechanical movement, prompted by an instinctive shrinking from imminent danger, the nature of which he may have been equally disqualified at...