Meyers v. Chicago, Rock Island & Pacific R.R. Co
| Decision Date | 28 February 1875 |
| Citation | 59 Mo. 223 |
| Parties | WILLIAM H. MEYERS, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY. |
| Court | Missouri Supreme Court |
Appeal from DeKalb Circuit Court.
J. H. Shanklin & M. A. Low, for Appellants.
I. The plaintiff admitted that the crossing was dangerous, and that its condition had been known to him for four weeks. And while ordinarily the presumption is, that in doing a particular act, the party doing it acted with due care, yet, where one attempts to do an act which he knows to be attended with risk and danger, he must show affirmatively that he conducted himself with prudence and discretion. (Fox vs. Town of Glastonbury, 29 Conn., 204; Butterfield vs. Forrester, 11 East., 61; Horton vs. Ipswick, 12 Cush., 488; Devitt vs. Pacific R. R., 50 Mo., 302.)
II. The court erred in giving plaintiff's 8th instruction. Negligence being the issue in this cause, to justify a recovery, it must be a case of unmixed negligence. If both parties, by their negligence, immediately contributed to produce the injury, neither can recover.
The cases of Kennedy vs. R. R. Co., 36 Mo., 351; Huelsenkamp vs. R. R. Co., 37 Mo., 537; Morrissey vs. Wiggins Ferry Co., 43 Mo., 38, and Karle vs. K. C., St. Joe. & C. B. R. Co., supra, in which the whole doctrine of contributory negligence has been thoroughly examined and reviewed by this court, furnish no warrant for this instruction. The authorities, English and American, are uniform to the effect, that if plaintiff's negligence or carelessness immediately or directly contributed to produce the injury, he cannot recover.
S. H. Corn, for Respondent.
I. Instruction No. 5, given for plaintiff, is proper, and stated the law of contributory negligence correctly. (Huelsenkamp vs. Citizen's Rlw. Co., 37 Mo., 537; Morrissey vs. Wiggins Ferry Co., 43 Mo., 383; Morrissey vs. Wiggins Ferry Co., 47 Mo., 521; Brown vs. Hann. & St. Joe. R. R. Co., 50 Mo., 461; Sherm. & Redf. Negl., § 36.)
II. Instructions 8 and 9 given for plaintiff are proper. (Sherm. & Redf. Negl., § 36; Ill. Cent. Rlw. Co. vs. Middlesworth, 46 Ill. 494; Chicago, etc. R. W. Co. vs. Hogarth, 38 Ill., 370; Kerwhacker vs. Cleveland, etc. R. C., 3 Ohio St., 172.)
III. The 1st, 2nd and 6th instructions asked by defendant and refused by the court, were properly refused. The negligence on part of plaintiff which would excuse defendant, must contribute directly to cause the injury; and even then defendant is held to the exercise of ordinary care, and it is not incumbent on plaintiff to show that the injury was willfully done. (Sherm. & Redf. Negl., § 32; West vs. Martin, 31 Mo., 375; Huelsenkamp vs. Citizen's Rlw. Co., 37 Mo., 537, supra;Brown vs. Hann. & St. Joe. R. R. Co., 50 Mo., 461, supra.)
This action was brought to recover damages for an injury done to a threshing machine of plaintiff which was accidentally on the defendant's railroad, by careless and negligent conduct of the agents and servants of the defendant, in running a train of cars against and upon said machine, by which said damage is charged to have occurred.
The petition in this case has two counts, but as the plaintiff elected to go to trial on the second count only, and the trial was had on that count, the first count need not be further noticed in the statement of the case.
It was charged by the second count that the plaintiff was the occupier of a farm in DeKalb County, Missouri, at the time of the grievances complained of, which farm is described in the petition; that the defendant was then operating and controlling a railroad, running through and over plaintiff's said farm and land, known as the Chicago & Southwestern railway; that it was the duty of defendant to construct and maintain a farm crossing over said road for the use of plaintiff; that on the 21st day of August, 1872, plaintiff was the owner of a threshing machine of the value of five hundred dollars; that plaintiff attempted to haul said machine across the track of said railroad at the crossing made on said farm, and in consequence of the negligence of the defendant in the maintenance of said crossing, the same was out of repair, and the axle of the carriage on which the machine was mounted, was thereby broken, by means of which said machine was stopped and thrown down upon said railroad, from which position the plaintiff was unable to have the same removed; that the defendant then and there, while said machine was on the track of said road as aforesaid, willfully and negligently ran its engine and cars against and over said machine and broke and damaged the same; and that plaintiff sustained damages thereby in the sum of five hundred dollars, for which judgment is prayed, etc.
The answer to this petition does not deny that the plaintiff owned the farm and machine as charged, or that said machine was injured, or that defendant used the road and cars as charged; but it denied all other material allegations of the petition. After the denials, the answer set up by way of counter-claim what was charged to be the wrongful act of plaintiff in placing his machine on the road of defendant, by which it was damaged, etc.
To this counter-claim a replication was filed, but no other notice is taken of it in the case.
The case was tried before a jury. The evidence on the part of the plaintiff tended to prove the allegations of the petition, and that the plaintiff's machine was injured by the negligence or willful conduct of the defendant's agents and servants in conducting and operating its cars and locomotive on said road.
The evidence on the part of the defendant tended to prove that the plaintiff was guilty of neglect in getting his machine on and off the road, and in giving those conducting the train on the road timely notice that the machine was on the road.
The plaintiff's evidence tended to rebut the evidence of the defendts, attributing neglect to plaintiff.
At the close of the evidence, the court, at the request of the plaintiff, and of its own motion, instructed the jury as follows:
“4th. If, under all the circumstances in the case, the jury believe from the evidence that a man of ordinary sense and caution would have ventured to cross the defendant's railroad with the machine in proof, at the same time and place, the plaintiff's servants in charge of said machine did, and that such servant used as much care and skill in attempting to so cross said railroad as men possessed of common sense and caution ordinarily use under like circumstances, then the breaking down of said machine on said road was the result of accident; and if the jury further believe from the evidence, that it was impracticable for plaintiff or his servants to remove said machine from the railroad track before the collision in evidence occurred, and that the plaintiff or his servants used such diligence in and about the premises as the time and circumstances would permit, to prevent the injury and to apprise the agents and servants of defendant managing the train that struck said machine-- the machine being on the defendant's railroad track, then the defendant will be liable to the plaintiff, if the jury further believe from the evidence that those managing said train of cars of defendant could have prevented the said collision and injury by the exercise of reasonable care and caution.
5th. If the jury should believe from the evidence that the plaintiff was guilty of negligence, but that his negligence was only the remote, and not the direct cause of the collision, and further believe from the evidence that the defendant's servants managing the train that struck the machine of plaintiff were guilty of negligence which was the direct cause of the collision, then the jury will find for the plaintiff the amount of damages caused by the collision.
6th. In determining what is the direct cause of the injury, the jury may take into consideration the efficiency of the cause or agency through which the injury was done, as well as proximity in point of time and place.
8th. If the jury believe from the evidence that those managing the train that did the injury could have prevented the collision by the exercise of reasonable care and diligence and willfully failed or neglected to do so, then they will find for the plaintiff, notwithstanding any negligence of the plaintiff.
9th. Even if the jury do believe from the evidence that the plaintiff was guilty of negligence or carelessness which contributed to the injury; yet if they further believe that the agents or servants managing the locomotive and machinery of defendant, and with which the injury was done, might have avoided said injury by the use of ordinary care and caution, they will find for plaintiff.
10th. If the jury find for the plaintiff, they will assess his damages at what they believe from the evidence the property was depreciated in value by the injury done.
11th. The court, on its own motion, instructs the jury that if they find for...
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