Burham v. St. Louis & I.M. R.R. Co.

• Decision Date: 31 March 1874
• Citation: 56 Mo. 338
• Parties: HENRY BURHAM, Respondent, v. ST. LOUIS & I. M. RAILROAD CO., Appellant.
• Court: Missouri Supreme Court

56 Mo. 338

HENRY BURHAM, Respondent,

v.ST. LOUIS & I. M. RAILROAD CO., Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Dryden & Dryden, for Appellant.

J. N. Straat, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

This suit was brought to recover damages for injuries alleged by plaintiff to have resulted from the negligence of defendant's employees, in coming in collision with plaintiff's wagon whilst crossing the track of defendant's railroad. The plaintiff was driving his wagon down Fillmore Street in Carondelet, or South St. Louis, towards the river, and when partly on the track of the railroad, the locomotive, which was going at considerable speed, struck the wagon, destroyed it, and inflicted very serious wounds on the plaintiff, disabling him, to some extent, for life.

The only question in the case, was one of negligence or want of care on the part of the defendant, or contributory negligence on the part of the plaintiff, directly leading to the collision.

The court gave two instructions for the plaintiff:

“1. If the jury find from the evidence that the plaintiff was injured while attempting to cross the track of the defendant, as stated in his petition, and that such injury was caused by the carelessness, negligence, or recklessness of the servants, agents and employees of the defendant, in conducting, managing and running the locomotive engine and cars attached thereto, without any fault, misconduct or negligence on the part of the plaintiff, directly contributing thereto, then they must find for the plaintiff.”

“2. The jury are instructed, that although the plaintiff may have failed to exercise ordinary care and prudence, while attempting to cross the track of defendant, as stated in his petition--which may have contributed remotely to the injury complained of--yet if the agents, servants and employees of the defendant were guilty of negligence, carelessness or recklessness, in conducting, running and managing the locomotive engine and cars thereto attached, which was the direct and immediate cause of the injury, and might have prevented it--the injury--by the exercise of ordinary prudence and care, the defendant is liable.”

The third instruction relates the rule of damages, and no objection being made to it, is not inserted.

For the defendant, the court gave the following instructions:

“1. That the defendant had the lawful right to run its locomotives and cars on and along its railroad track; and although the jury may believe from the evidence in the cause, that a train of defendant's cars, running on said railroad, collided with a wagon on which the plaintiff was seated, and injured him, yet if they further believe from the evidence, that said injury happened by accident, and not by reason of any negligence or want of care of the agents and employees of defendant, in charge of said train, the verdict of the jury should be for the defendant.”

“2. If the jury believe from the evidence, that just before the happening of the collision between the train and the team spoken of by the witnesses, and before said team had been put across said defendant's railroad track, the plaintiff knew, or by the exercise of reasonable care and attention, might have known, that defendant's said locomotive and cars were then so near at hand and approaching him, that an attempt to cross said track in front of the same would be plainly dangerous and hazardous, and that plaintiff did yet, nevertheless, attempt to drive said team across said track in front of said approaching locomotive and cars, and that the said attempt of plaintiff to drive across said track, directly contributed to produce the injuries complained of by plaintiff, then they must find for defendant.”

“3. The court further instructs the jury, that although they may believe that the negligence or want of care of the agents and servants of the defendant contributed to the happening of the injury complained of, yet if they shall further...