Whalen v. St. Louis, Kansas City & Northern Ry.

Decision Date31 May 1875
Citation60 Mo. 323
PartiesEDMUND WHALEN, Respondent, v. THE ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY, Appellant.
CourtMissouri Supreme Court

Appeal from Ray Common Pleas.

C. T. Garner, for Appellant.

I. The agents of defendant had no right to presume that there was any one upon the track, especially as it was the usual time for running the train, and at night (Penn. R R. Co. vs. Henderson, 33 Penn., 325; Ch. & R. I. R. R. Co. vs. Still, 19 Ill., 499; Burham vs. St. L. & I. M. R. R. Co., 56 Mo., 338; Robinson vs. Cue, 22 Vt., 213; Redf. Railw., § 193 and authorities cited; 44 Penn. St., 375; Finlayson, Adm'x, vs. The Ch., B. & Q. R. R., 1 Dill., 579); and would be held only if, after becoming aware of plaintiff's danger, they failed to use ordinary care to avoid injuring him. (Ill. Cent. R. R. Co. vs. Godfrey, Am. Law. Reg., May 1875, p. 294.)

II. The plaintiff's fault contributed to and was the cause of the injury, and he had no right to recover. (Stuck vs. The Milw. & Miss. R. R. Co., 9 Wis., 202; Brown vs. Kendall, 6 Cush., 331; Schaabs vs. Woodburn Sarven Wheel Co., 56 Mo., 173; Morrissey vs. Wiggins Ferry Co., 43 Mo., 383, and authorities there cited; Redf. Bail. & Car., § 360, p. 276; Whart. Neg., §§ 300, 341; 12 Metc., 415; 6 Hall, 592.)

III. Plaintiff had no right to walk along the track where there was no crossing or street; and if he was so walking there, he must abide the consequences of the risk and perils thus negligently and carelessly assumed. (Ill. Cent. R. R. Co. vs. Godfrey, Am. Law Reg., May 1875, p. 290; Aurora Rail Co. vs. Ginnis, 13 Ill., 585.)

IV. A passenger on board a railroad car, and a person on foot in the street, or on the track, do not sustain the same relation to the railroad company. (Brand vs. Railroad, 8 Barb., 368; Ang. & Ames Corp., § 388, p. 404, 8 ed.)

V. The court should reverse on the ground of excessive damages. (Sawyer vs. Hann. &. St. Jo. R. R. Co., 37 Mo., 240; Pratte vs. Blakely, 5 Mo., 205; Goetz v. Ambs, 22 Mo., 170; Collins vs. Alb. & Schenec. R. R. Co. 12 Barb., 492; Clapp vs. Huds. River R. R. Co., 19 Barb., 461; 21 Mo., 354.)

Donaldson & Farris, for Respondent, cited in argument, Brown v. Hann. & St. Jo. R. R. Co., 50 Mo., 461.

WAGNER, Judge, delivered the opinion of the court.

This was an action for damages inflicted by a train of cars on defendant's road, in crushing plaintiff's foot, whereby it became necessary to have one of his legs amputated.

The facts in the case are briefly these: The Richmond and Lexington junction, where the accident happened, is in a small town, and the depot is surrounded entirely by railroad tracks, so that in going to the depot it is necessary to cross a track, from whatever side it is approached. On the night when the injury occurred, between eight and nine o'clock the plaintiff, as he alleges, started to go to the depot for the purpose of taking passage on the train, and walked down the track towards the depot. The testimony shows that there were three ways by which the depot was reached. One was by a traveled road, another by what seems to have been a path, and the other down the track. And all these ways were in common use.

The evidence strongly shows, that on the night in question the train that injured plaintiff was backed up, and had on it no head light, and did not ring the bell or sound the whistle to give any warning of its approach. There was evidence introduced to show that plaintiff was intoxicated, and evidence of a contrary character was also given.

The facts were exclusively for the determination of the jury; and, to see whether the court correctly instructed them on the law, it will be as well to insert the declarations.

The first two instructions given for the plaintiff are immaterial. The third was, “that if the jury believe from the evidence, that the defendant, through the negligence or carelessness of its agents, and without negligence on the part of the plaintiff, inflicted upon the plaintiff the injuries mentioned in the petition, they will find for the plaintiff, and assess his damages at such sum as they may think he is entitled to, not to exceed the amount of fifteen thousand dollars, the sum claimed in the petition.”

The fourth instruction declared, that “even if the jury should believe from the evidence, that the plaintiff was guilty of negligence which contributed to the injury, yet if they should further believe that the agents or servants of the defendant, managing the locomotive or machinery with which the injury complained of was inflicted, might have avoided the injury by the use of ordinary care and caution, the jury will find for the plaintiff.”

The fifth instruction told the jury that if they found for the plaintiff, they should, in estimating the amount of the damages, take into consideration the age and situation of the plaintiff, his bodily suffering and mental anguish resulting from the injury received, and the loss sustained by the want of the limb injured, and the extent to which he was disabled from making a support for himself, by reason of the injury received.

For the defendant the court declared as follows:

1. “The defendant had the legal right to the use of its own track, and the right to run and operate its locomotive and train of cars thereon at any time, in conducting its ordinary business, either in the day or night, and either backwards or forwards. And if the jury believe from the evidence, that defendant, by its agents and employees, at the time mentioned in plaintiff's petition, used reasonable and ordinary care, skill, diligence and prudence in moving said train from the side track on to the main track, and that at the time of starting on said main track the whistle was sounded, and that said agents and employees used reasonable and ordinary care, skill and caution, in running said train on said track to the point where the injury complained of occurred, then the jury must find for the defendant. The reasonable and ordinary care, skill and prudence which the law requires, is such care, skill and prudence as might be expected from an ordinary careful, skillful and prudent man in like situation and circumstances.”

3. “If the jury are satisfied from the evidence, that the plaintiff, by the exercise of ordinary care, diligence and prudence, might have avoided the injury complained of, the jury will find for the defendant. The ordinary care, diligence and prudence which the law required of the plaintiff is the exercise of such caution, prudence and diligence as was proportioned to the danger to be avoided, judged by the standard of ordinary prudence and diligence.”

4. “If the jury believe from the evidence that the plaintiff, by his own carelessness and negligence, contributed to and was...

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