Smith v. Union Ry. Co.

• Decision Date: 31 January 1876
• Citation: 61 Mo. 588
• Parties: WILLIAM R. SMITH, et al., Respondents, v. THE UNION RAILWAY COMPANY, et al., Appellants.
• Court: Missouri Supreme Court

61 Mo. 588

WILLIAM R. SMITH, et al., Respondents,

v.THE UNION RAILWAY COMPANY, et al., Appellants.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Cline, Jamison & Day, for the Company, and Leverett Bell, for the City.

When one enters the service of the city as a fireman, he he does so with full knowledge that in the discharge of his duties he will be compelled to move rapidly over the streets, and assume risks flowing therefrom.

The deceased had full knowledge of the condition of the streets, or ample opportunity to acquire that knowledge. Such knowledge raised a presumption of negligence on the part of the deceased, and required proof to negative this presumption, and in the absence of such proof it became the duty of the court to instruct the jury, that plaintiffs could not recover. (Achtenhagen vs. Watertown, 18 Wis., 331; Fox vs. Glastenbury, 29 Conn., 204; Wilson vs. Charleston, 8 Allen, 137; Cornelius vs. Appleton, 22 Wis., 635.)

The upsetting of the carriage was shown to be the immediate, natural and proximate result of careless and reckless driving.

The plaintiffs were bound to show that deceased and his driver had used reasonable care in attempting to get upon the railroad track with the hose carriage, and having failed to do so, they could not recover. (See generally, Horton vs. Ipswich, 12 Cush., 488; Thompson vs. Bridgwater, 7 Pick., 190; Butterfield vs. Forrester, 11 East, 61; Griffin vs. Mayor of N. Y., 5 Seld., 460; Burr vs. H. R. R. Co., 19 Conn., 566; Park vs. O'Brien, 23 Id., 339; Neal vs. Gillett, 23 Id., 437; Dalay vs. W. & W. R. R. Co., 26 Conn., 591; Spencer vs. Utica & S. R. R. Co., 5 Barb., 337.)

R. S. MacDonald, with M. Kinealy, for Respondent.

I. The evidence does not establish contributory negligence; and that question, in this case, should have been submitted to the jury.

NAPTON, Judge, delivered the opinion of the court.

This action was brought to recover damages for the death of plaintiff's father, caused by the overturning of a hose carriage on 13th street, in the city of St. Louis where the railroad company had a part of its track.

It appeared that the rails of the company between Saulsbury street, on which there was a fire engine and hose station, and the street south of it, had become by reason of the travel of wagons on the side of the track, or from some other cause, some three or four inches higher than the street. There was a turntable and a switch track on 13th street near the junction with Saulsbury street, and there was a hole in the west side of the track, and another further south on the east side.

On the night of 12th December, 1871, about 9 o'clock an alarm of fire was communicated to the engine house at the corner of 12th and Saulsbury streets. The hose carriage was immediately started, and the driver with the plaintiff's father, Smith, both members of the fire brigade, started up Saulsbury to 13th street, and down 13th to the southern part of the city, where the fire was announced.

In driving down 13th street, they attempted to cross the railroad track at a rapid pace. The fore wheels of the hose carriage passed over the rails, but the hind wheels striking the rails obliquely, and sliding along for some distance, finally turned the carriage over, and the plaintiff's father was killed.

There was evidence to show that the deceased and the driver were quite familiar with the condition of the street and the condition of the track.

Upon the testimony of the plaintiff the court instructed the jury that no recovery could be had. Upon appeal to the general term, the judgment was reversed, and the cause remanded for trial; and the case comes here on appeal from the decision of the general term.

The decision of the circuit court which tried the case seems to be based on the conclusion from the evidence, that there was an absence of ordinary care on the part of the plaintiff's father, and therefore, that the negligence of defendant furnished no ground of action.

The rule of law in this question seems to be carefully stated by Ld....