O'Connor v. Missouri Pac. Ry. Co.

• Decision Date: 20 February 1888
• Citation: 94 Mo. 150,7 S.W. 106
• Parties: O'CONNOR v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

7 S.W. 106

94 Mo. 150

O'CONNOR v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

February 20, 1888.

1. NEGLIGENCE — PLEADING — ABSENCE OF CONTRIBUTORY NEGLIGENCE.

In an action for negligently causing the death of plaintiff's husband, it is not necessary to allege that deceased was in the exercise of due care, or without fault. It is for the party relying upon negligence to allege and prove it.¹

2. RAILROAD COMPANIES — NEGLIGENCE — HIGHWAYS.

It is negligence for a railway company to cut a car loose and permit the same to run across a public highway, unguarded, and unattended, and in such a manner as to endanger travelers passing along or across said highway.²

3. SAME.

While it is the duty of a traveler on a public highway crossing a railway to use his eyes and ears as an ordinarily prudent person would under similar circumstances, yet he is not bound to anticipate such an act of negligence on the part of another.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

T. J. Portis and Adams & Bowles, for appellant. Sherry & Harlow, for respondent.

BLACK, J.

The defendant appealed from a judgment in favor of the plaintiff for $5,000 damages for the death of her husband, who was run over by one of the defendant's cars at or near the intersection of Union avenue and Hickory street, in Kansas City, in February, 1886. The defendant offered no evidence. That for the plaintiff is, in substance, as follows. Hickory street runs north and south, and Union avenue crosses it in a north-westerly direction. Hickory street forms the eastern boundary of the defendant's switchyards, and Union avenue extends along the north-east side thereof. There are five or six railroad tracks on and along Union avenue at this crossing, one of which, at least, is used by the Wabash road, and others are owned by the defendant. The deceased, in going to church on Sunday morning, traveled southward from his home on and along Hickory street, until he reached these several tracks. There his progress was obstructed by a train of the Wabash road going east on the south track. At this time defendant's servants were switching cars in and out of the yard. They had a string of cars to the east of the crossing, and from the rear of their train they "kicked" a single car westward over the crossing and into the switch-yard. There was no brakeman or other person on the car, and it ran on and over O'Connor, and he died from the effect of the wounds then received. There is evidence to the effect that O'Connor, in order to get by the passing Wabash train, turned and went west on the defendant's track 30, 40, or 50 feet, and that the car hit him in the back while he was thus going west. Other witnesses who measured the distance say he was found, when run over, not more than 15 feet west of the west line of Hickory street. There is still other evidence to the effect that he was hit while in the limits of Hickory street, and that the car pushed him westward. If not hit while on Hickory street, he was on Union avenue, — both public streets. One or two persons who were of the crew engaged in switching the cars hallooed to him to get off the track, but it is evident he did not hear the warning, probably because of the noise of a passing train, and that of two switch-engines near the same place.

1. The defendant objected to the introduction of any evidence. This objection, it is contended, should have been sustained, because the petition did not allege that the deceased was without fault on his part. It is the established law of this state that it is not necessary to state in the petition that the plaintiff or the deceased person was, at the time of the injury, in the exercise of due care, or without fault. It is for the party who relies upon negligence, either as a cause of action or a defense, to allege and prove it. Thompson v. Railroad Co., 51 Mo. 190; Loyd v. Railroad Co., 53 Mo. 509; Petty v. Railroad Co., 88 Mo. 320; and many other cases.

2. The public, as well as the defendant, had the right to the use of the streets, and the defendant was at all times in duty bound to respect the rights of persons traveling thereon. The only purpose of making a flying switch was to save travel on the part of the engine. It is too plain to admit of a shadow of doubt that making a flying switch on a public highway which is in constant use, and without the car being attended by and under the control of a brakeman, is evidence of gross negligence. Kay v. Railroad Co., 65 Pa. St. 269; Butler v. Railroad Co., 28 Wis. 487. In Brown v. Railroad Co., 32 N. Y. 597, such an act was characterized as gross negligence, and it may be the better doctrine to say that such an act, under the circumstances disclosed in this case, is negligence per se. But the instructions given in this case do not require us to express any opinion upon that proposition. The court, by the instruction given at the request of the plaintiff, left it to the jury to...