Karle v. Kansas City, St. Joseph & Council Bluffs R.R. Co

• Decision Date: 28 February 1874
• Citation: 55 Mo. 476
• Parties: SOPHIA KARLE, Respondent, v. THE KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS R. R. COMPANY, Appellant.
• Court: Missouri Supreme Court

55 Mo. 476

SOPHIA KARLE, Respondent,

v.THE KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS R. R. COMPANY, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Circuit Court.

Stringfellow, for Appellant.

Hill & Carter, for Respondent.

Unless the acts of the person killed were the direct and proximate cause of the disaster, the company will not be excused from liability. (Kennayde vs. Pacific Railroad, 45 Mo., 253; Colegrove vs. N. Y. & H. R. R. R., 6 Duer., 382; Shearm. & Redf. Neg., 25, 28, 29, 47, and cases cited; Morrissey vs. Wiggins Ferry Co., 43 Mo., 380; Davies vs. Mann, 10 Mees. & W., 545; State vs. Manchester & L. R. R., 52 N. H., 528; Thompson vs. N. Mo. R. R. Co., 51 Mo., 190; Meyer vs. People's R. R. Co., 43 Mo., 523.)

NAPTON, Judge, delivered the opinion of the court.

This suit was to recover the penalty of $5,000 against defendant for killing the plaintiff's husband at a street crossing in St. Joseph, by the careless and negligent conduct of an engineer in charge of a locomotive of defendant.

There was a verdict for plaintiff under instructions from the court; and a bill of exceptions was taken, which did not give any details of the evidence on either side, but merely stated that evidence was given to sustain the issues made by the pleadings on either side. The instructions given and refused are preserved in the bill of exceptions, and the propriety of these instructions presents the only point for our consideration.

The instructions given, are as follows:

1. The defendant admits that it is a corporation, &c., and the owner of a certain railroad from Kansas City to and through the City of St. Joseph, &c., and that it was authorized to run locomotive engines, cars, &c., over and across the roads and streets of said City of St. Joseph, &c. also admits, that the City of St. Joseph was incorporated, &c., and that by an act of the General Assembly of the State of Missouri entitled, “An act to amend the charter of the City of St. Joseph, approved Jan'y 26, 1864,” power and authority were granted to said City of St. Joseph to prescribe the kind of power to be used on said road, and to regulate the speed of locomotives and cars passing over said railroad within the corporate limits of said city; and that in pursuance of said power and authority thereby granted the said city, it duly passed, on the 12th of June, 1869, an ordinance and law to regulate the same, and defendant admits that a portion of said ordinance and law pertaining to railroads is in words and figures as follows, to-wit: Ch. 47, § 1. “No locomotive engine, railroad passenger car or freight car shall be driven, propelled or run upon or along any rail track within said city at a greater speed than at the rate of five miles per hour. Sec. 4. Every locomotive engine, railroad car, or train of cars running in the night time on any railroad track in said city, shall have and keep while so running, a brilliant and conspicuous light on the forward end of such locomotive engine, car, or train of cars. Sec 6. The bell of such locomotive shall be rung continually while running within said city.”

Defendant also admits, that said ordinance and law and the parts thereof above set forth, were in full force and effect in said City of St. Joseph at the time of the alleged committing of the injuries and violations in plaintiff's petition complained of.

2. The court instructs the jury, that if they believe from the evidence that G. Karl, husband of the plaintiff, was by the defendant's locomotive and tender run over and killed while crossing the said defendant's railroad at the crossing of 8th St., in the City of St. Joseph; and said running over and killing were the result of, and occasioned by, the negligence or unskillfulness of the servants, engineer or employes of the defendant conducting or managing said locomotive and tender, they will find for the plaintiff $5,000 in damages.

3. If the jury believe from the evidence, that the defendant at the time alleged in the petition, by its servants and employes ran their locomotive engine along its railroad track within the City of St. Joseph, at a greater speed than the rate of five miles per hour, it constituted negligence on the part of the defendant.

4. If they believe from the evidence, that the defendant at the time alleged in the petition, by its servants or employes, ran their locomotive engine, car or train of cars in the night time on its railroad track in the City of St. Joseph, without keeping while so running a brilliant and conspicuous light on the forward end of such locomotive engine, car or train of cars, it constituted negligence on the part of defendant.

5. If the jury believe from the evidence, that the defendant at the time alleged in the petition, by its employes ran its locomotive engine over its road within the City of St. Joseph, without ringing its bell continually while running in said city, it constituted negligence on the part of the defendant.

6. The court instructs the jury, that they are authorized to infer negligence upon the part of defendant, if they believe from the evidence, that the defendant at the time alleged in the petition, by its servants and employes ran its locomotive or train within the City of St. Joseph, out of the usual time for running its trains over its railroad, and failed to use more than ordinary care when crossing the streets or public highways in said city to avoid doing injury to persons passing over its track.

The above instructions were all given against the objection of defendant. The defendant asked the following instructions:

First. In this case, the burden of proof is on the plaintiff, and to entitle her to recover she must prove to the satisfaction of the jury by the preponderance of the evidence, 1st, that the husband of plaintiff was killed by the negligence, unskillfulness or criminal intent of some officer, agent, servant or employee of the defendant; 2nd, that such officer, agent, servant or employee was at the time running, conducting or managing some locomotive of defendant; 3rd, that such servant, agent, officer or employee was at the time subject to and under the control of defendant; 4th, that such person so killed had a right to be on defendant's road at the time and place where he was killed. And if the plaintiff fail to satisfy the jury of all or any one of these facts, they will find for defendant.

Second. If the jury find from the evidence, that the death of Karle, was occasioned in any manner by his own negligence, or that at the time of his death he failed to use ordinary care to protect himself from danger, by reason of the passing of defendant's train, they should find for defendant.

These instructions were refused, and the court instructed as follows:

The court instructs the jury, that the burden of proof is on the plaintiff; and to enable her to recover, she must prove to the satisfaction of the jury by the preponderance of the evidence, 1st, that the husband of plaintiff was killed by the negligence, unskillfulness or criminal intent of some officer, agent, servant or employee of defendant; 2nd, that such officer, servant, agent or employee was at the time running, conducting or managing some locomotive of defendant; 3rd, that said person so killed was in a public street crossing in the City of St. Joseph at the time of such killing. And if the plaintiff fails to satisfy the jury of all or any one of these facts, they will find for defendant.

Third. The court instructs the jury, that if they find from the evidence that the deceased Karle, was guilty of any negligence that contributed directly to cause his death, they will find for the defendant.

The first instruction is...