59 S.W. 982 (Mo. 1900), Davies v. People's Railway Company

Citation:59 S.W. 982, 159 Mo. 1
Opinion Judge:ROBINSON, J.
Party Name:DAVIES v. PEOPLE'S RAILWAY COMPANY, Appellant
Attorney:M. Kinealy and Jas. R. Kinealy for appellant. J. M. Holmes for respondent.
Case Date:December 11, 1900
Court:Supreme Court of Missouri
 
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Page 982

59 S.W. 982 (Mo. 1900)

159 Mo. 1

DAVIES

v.

PEOPLE'S RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

December 11, 1900

Transferred from St. Louis Court of Appeals.

Reversed.

M. Kinealy and Jas. R. Kinealy for appellant.

(1) Plaintiff was guilty of contributory negligence which bars his recovery, and the court should have instructed the jury at the close of the case that he was not entitled to recover. Culbertson v. Railroad, 36 S.W. 834; Jones v. Barmead, 63 Mo.App. 501; Vogg v. Railroad, 36 S.W. 646; Henry v. Railroad, 76 Mo. 293; Lane v. Railroad, 33 S.W. 651; Johnston v. Stewart, 34 S.W. 889; Schoenholtz v. Railroad, 37 N.Y.S. 682. (2) The court by its action on the instructions, indicated to the jury that contributory negligence of plaintiff had no bearing on the case; that defendant must watch plaintiff, anticipate injury to him and protect him from injury so far as ordinary care will do so, whether he is negligent or not. This is not now the law in Missouri. See cases cited under point 1. (3) There was no evidence tending to show that defendant's employees were guilty of negligence entitling plaintiff to recover, even if the question of his contributory negligence were out of the case. Whitaker's Smith on Negligence, chap 5; Little v. Railroad, 24 S.E. 514.

J. M. Holmes for respondent.

Defendant was engaged in operating a cable road on one of the most crowded streets in the city. It has no exclusive right of way in the street, but must use its rights therein with due regard to the rights of others. For months the street, at the point at which the accident occurred, had been obstructed, and lawfully obstructed, by masses of building material, and by teams and men engaged in unloading the same. This fact was well known to the defendant and its employees. Plaintiff was lawfully in the street and was engaged in a lawful occupation. Moreover, he was engaged in heavy labor -- lifting with a lever the end of an iron beam of great weight, so that a noose could be put over the end of it. Naturally and properly he took the position which the exigencies of his task required. He had a perfect right to assume that the employees of the defendant would operate their cars in the only way in which, under such circumstances, they could be operated safely, and in the way in which, under such circumstances, they customarily are operated. The duty of defendant's employees was very plain. In approaching a man so employed they should proceed with the greatest caution; not merely giving signals such as would be recognized by a man whose mind was intent upon his task and whose muscles were straining under the burden of it, but satisfying themselves that they were observed, and coming to a full stop, if necessary, if not so satisfied. From the nature of his occupation, plaintiff was entitled to reckon upon this amount of care on the part of defendant's employees. Gratiot v. Railroad, 116 Mo. 450; Baird v. Railroad, 48 S.W. 78.

OPINION

[159 Mo. 4] ROBINSON, J.

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