52 S.W. 406 (Mo. 1899), Bailey v. Citizens Railway Company

Citation:52 S.W. 406, 152 Mo. 449
Opinion Judge:GANTT, C. J.
Party Name:Bailey, Administrator, v. Citizens Railway Company, Appellant
Attorney:Smith P. Galt for appellant. Daniel Dillon and George W. Bailey for respondent.
Judge Panel:GANTT, C. J. Burgess, Brace and Marshall, JJ., concur; Valliant, J., in holding the fifth instruction erroneous, but expresses no opinion as to the fourth instruction; Robinson, J., dissents; Sherwood, J., absent.
Case Date:December 05, 1899
Court:Supreme Court of Missouri
 
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Page 406

52 S.W. 406 (Mo. 1899)

152 Mo. 449

Bailey, Administrator,

v.

Citizens Railway Company, Appellant

Supreme Court of Missouri

December 5, 1899 [*]

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

Smith P. Galt for appellant.

(1) The court erred in giving plaintiff's instruction number 1. First. It placed the burden of proof on defendant, when it was on the plaintiff. The general rule that negligence on the part of defendant must be alleged and proven, is fundamental. Fuchs v. St. Louis, 133 Mo. 198; Chapman v. Street Ry., 114 Mo. 542; Goode v. St. Louis, 113 Mo. 257; Ellerbe v. Berney, 119 Mo. 632; Johnson Co. v. Wood, 84 Mo. 489; McCullock v. Holmes, 111 Mo. 445; Thornton v. Royce, 56 Mo.App. 179; Beatie v. Rocky Branch Coal Co., 56 Mo.App. 221; Kenney v. Railroad, 105 Mo. 270; Glover v. Henderson, 120 Mo. 367; Bunker v. Hibler, 49 Mo.App. 536; Norton v. Paxton, 110 Mo. 456; Maddox v. Maddox, 114 Mo. 35. Second. It was a palpable violation of the rule of legal presumption and of logical conclusion, to tell the jury that "the law presumes that said accident happened, and said collision of the grip bar of plaintiff's train on account of the displaced slot of the St. Louis Cable & Western Railway Company was caused by the negligence, or want of ordinary care, on the part of defendant's workmen or employees." (2) The court erred in giving plaintiff's instruction number 5. (a) It takes away any hope for defendant, in this, that it tells the jury that if the defendant has proved, "to the satisfaction of the jury," that the gripman of plaintiff's train was guilty of negligence in running or "attempting" to run over said crossing at "an improper or reckless rate of speed," and that "such rate of speed caused the displacement of said slot," nevertheless "plaintiff can recover, unless the gripman was at the time acting under or subject to the direction and control of plaintiff as to such rate of speed." A defendant charged with negligence can disprove negligence in two ways; first, by showing that he or it used all ordinary care, and, secondly, by showing that the accident was not caused by his or its act at all, but by the independent act, negligent or otherwise, of a third party, not connected with the defendant at all. Either is a complete defense, because it proves the defendant not guilty. Therefore, in this case it mattered not whether the gripman was subject to plaintiff's control or not, if he caused the accident. (b) It makes the defendant an insurer of the plaintiff against the negligence of his own gripman, if he was not acting under the direction and control of the plaintiff as to his rate of speed.

Daniel Dillon and George W. Bailey for respondent.

(1) The independent negligence of the gripman was not relied upon or contemplated at the trial as constituting a defense to this action. The effort of defendant, exclusively, was to connect plaintiff's negligence with his injury. (a) "When the defendant pleads the negligence of a party other than the plaintiff in bar of the action it must appear, not only that such third person was in fault, but that the plaintiff ought to be charged with that fault." Beach on Contrib. Neg., sec. 100. (b) The adoption of the theory of contributory negligence necessarily admits the negligence of the defendant. Beach on Contrib. Neg., sec. 64. (2) When a plaintiff is thrown off his guard and acts upon a reasonable supposition of safety induced by a defendant, in a way and to an extent which, but for the defendant's inducement, might be imputed to plaintiff as negligence sufficient to prevent a recovery there is no contributory negligence. McGee v. Railroad, 92 Mo. 219; Beach on Contrib. Neg., secs. 65, 67, 68, 102; Benjamin v. Railroad, 133 Mo. 291. (3) Contributory negligence is an affirmative defense and to be rendered available must be pleaded. Young v. Iron Co., 103 Mo. 324; Lane v. Railroad, 132 Mo. 18. (4) The elements necessary to constitute an independent intervening cause, as an excuse for defendant's negligence, are not in this case. Lowery v. Railroad, 99 N.Y. 158; Pollett v. Long, 56 N.Y. 200; Koelsch v. Phia Co., 152 Pa. St. 355; 2 Thompson on Negligence, p. 1088; 1 Sharman & Redfield on Negligence, sec. 29; Bishop on Noncontract Law, sec. 528.

GANTT, C. J. Burgess, Brace and Marshall, JJ., concur; Valliant, J., in holding the fifth instruction erroneous, but expresses no opinion as to the fourth instruction; Robinson, J., dissents; Sherwood, J., absent.

OPINION

Page 407

[152 Mo. 452] In Banc.

GANTT, C. J.

-- Action for damages growing out of personal injuries.

The petition alleges that the defendant is and at the times mentioned was a corporation by virtue of the laws of Missouri and used and operated a certain street railway and crossing along Easton and Franklin avenues. That the St. Louis Cable & Western railway used at said times a certain railway which was crossed by defendant's railway at or near the junction of Easton and Franklin avenues in St. Louis. That on the twenty-sixth day of August, 1889, the plaintiff was conductor of one of the cable cars of the St. Louis Cable & Western railway going west at the junction of said tracks. That as the grip car, which was drawing the car on which plaintiff was conductor, was passing said crossing the grip of said car ran against the slot, thereby throwing plaintiff against a seat of the car on which he was conductor, and dislocated his right shoulder and otherwise bruised and injured plaintiff.

And plaintiff avers that said grip was caused so to run against said slot and injure the plaintiff by the negligence of defendant's servants in that they displaced the slot of the St. Louis Cable & Western railway so as to obstruct the passage of the grip attached to the grip car of plaintiff's train. That [152 Mo. 453] defendant by its servants was at said time engaged in repairing said crossing and negligently and carelessly displaced the slot of the St. Louis Cable & Western railway track so as to obstruct the passage of the grip on said track, and defendant's said servants also negligently failed to give any notice to the persons in charge of the St. Louis Cable & Western cars of the fact of such obstruction. Whereby said grip was caused to strike against the side of said slot and injure plaintiff as aforesaid. That by his injury so sustained plaintiff has suffered and will suffer great pain of body and mind, has been permanently disabled from labor and crippled for life, has incurred large expense for medicines, medical attention and nursing and is damaged in the sum of $ 10,000 for which sum he prays judgment.

The answer is a general denial and a plea of contributory negligence by plaintiff and those operating his train with him.

Reply, general denial.

The testimony on the part of the plaintiff tended to establish that the crossing of the St. Louis Cable & Western railway and the Citizens railway, at Twenty-eighth street and Franklin avenue, commonly called the Sheridan Exchange, in the city of St. Louis, had become out of repair by reason of the jarring of the trains of both of said railways over it and as a consequence a vibration of the tracks ensued when trains passed over said crossing. It became necessary to repair said crossing, and for two weeks prior to August 26, 1889, the defendant company had been engaged in putting in a new crossing at said junction. To do this it...

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