Langan v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1880
• Citation: 72 Mo. 392
• Parties: LANGAN, Plaintiff in Error, v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.
• Court: Missouri Supreme Court

72 Mo. 392

LANGAN, Plaintiff in Error,

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.

Supreme Court of Missouri.

October Term, 1880.

Error to St. Louis Court of Appeals.

REVERSED.

Hess & Prescott and Martin & Lackland for plaintiff in error.

Taking into consideration the fact that the train was not in sight when plaintiff reached the platform, and that the engineer ran the train into the station at the rate of twelve or fifteen miles an hour, and at an unusual rate of speed, so fast that many of the witnesses, who had often seen it come in before, thought that it was not going to stop at the station, where a large crowd had gathered, and that another train was approaching plaintiff from the opposite direction, ringing its bell and likely to attract the attention of persons at the station, and that train being not even seen by the engineer and fireman on the locomotive, as they testify, and that plaintiff was on the platform, where he ought, and was compelled to be, and was seen by the engineer in time to have avoided the injury by giving the proper signals, if he had been running at an ordinary rate of speed, and without his ringing any bell or sounding any whistle, must certainly take the case out of the rule of contributory negligence. Maher v. A. & P. R. R. Co., 64 Mo. 276; Meyer v. Midland, etc., R. R. Co., 2 Neb. 335; Lafayette, etc., R. R. Co. v. Adams, 26 Ind. 76; Moody v. Pacific R. R. Co., 68 Mo. 473; Card v. Railroad, 50 Barb. 39; Detroit, etc., R. R. Co. v. Van Steinburg, 17 Mich. 104; P. & T. R. R. Co. v. Hagan, 47 Pa. St. 244; Railroad Co. v. Houston, 95 U. S. 697; Kennayde v. Pac. R. R. Co., 45 Mo. 261; Liddy v. St. Louis R. R. Co, 40 Mo. 506; Smith v. Union Ry. Co., 61 Mo. 588; Burham v. St. L. & I. M. R. R. Co., 56 Mo. 338; Railroad Co. v. Whitton, 13 Wall. 270; Beers v. Housatonuc R. R. Co., 19 Conn. 566; Park v. O'Brien, 23 Conn. 342; Ernst v. Hudson River R. R. Co., 35 N. Y. 9; Renwick v. N. Y. C. R. R. Co., 36 N. Y. 132; Beisiegel v. N. Y. C. R. R. Co., 34 N. Y. 622; Brown v. N. Y. C. R. R. Co., 32 N. Y. 600.

Thoroughman & Pike for defendant in error.

Plaintiff was not entitled to recover on his own testimony and that of his witnesses. His evidence, and that of his witnesses, shows beyond question that he knew that the train by which he was injured was due, and that he was looking for it to come in every minute, that there was no difficulty in his seeing the train as it approached if he had looked, or in hearing it if he had listened; that the track was straight, level and unobstructed for nearly a mile southward; that it was broad daylight, and that plaintiff's eyesight and hearing were good, and that at the time he was struck he was standing with his back to the approaching train, and so near to the track that he was struck by the buffer of the engine. Such evidence of negligence, in the nature of an admission on the part of the plaintiff, contributing directly to the result, would have justified the court in instructing the jury to find for the defendant. Maher v. A. & P. R. R. Co., 64 Mo. 267; Galena, etc., R. R. Co. v. Loomis, 13 Ill. 548; Chicago, etc., R. R. Co. v. Patchin, 16 Ill. 198; Galena, etc., R. R. Co. v. Dill, 22 Ill. 264; Butterfield v. Railroad Co., 10 Allen 532; Wharton on Negligence, 382, 383; Bellefontaine R. R. Co. v. Hunter, 33 Ind. 356; Harlan v. St. L., K. C. & N. Ry. Co., 64 Mo. 480; Railroad Co. v. Houston, 95 U. S. 697; 1 Thompson on Negligence, 429 (2); Grows v. Maine R. R. Co., 67 Me. 100; McMahon v. Northern, etc., R. R. Co., 39 Md. 438; Lewis v. Baltimore, etc., R. R. Co., 38 Md. 588; s. c., 17 Am. Rep. 521; Wilds v. Hudson River R. R. Co., 29 N. Y. 315.

NORTON, J.

This suit was instituted in the circuit court of St. Louis county for the recovery of damages, occasioned by injuries inflicted on plaintiff by the alleged negligence and carelessness of defendant, in conducting, operating and managing its locomotive engine and train of cars, and negligence in not ringing its bell or sounding its whistle as they approached the station at which plaintiff was struck and injured. The answer of defendant denies the allegations of the petition, avers that plaintiff's injury was occasioned by his own negligence, and also pleads a release in writing of all claims for damages sustained by plaintiff. The replication denies contributory negligence, and avers that the release set up in the answer was obtained by fraud. On the trial plaintiff obtained judgment for $5,000, from which defendant appealed to the St. Louis court of appeals, where the judgment was reversed, and from which plaintiff prosecutes his appeal here.

The chief ground of error relied upon by counsel, arises from the action of the court in refusing certain instructions asked by defendant, and in giving others on the part of plaintiff, which submitted to the jury the question as to whether the injury sued for was occasioned by plaintiff's own negligence, or that of defendant in operating its train. It is insisted that neither of these questions should have been submitted to the jury; first, because there was no evidence showing negligence on the part of defendant, and because the evidence showed that plaintiff's injury was the result of his own carelessness. It, therefore, becomes necessary to consider the evidence, in order to a proper determination of the questions thus presented.

The evidence shows that plaintiff was on a platform at Docks Station, in the city of Carondelet, where he had gone to assist a friend, who intended taking passage on one of defendant's trains bound north, in carrying his trunk; that his friend purchased his ticket at said station, and they were directed by the ticket agent to take the trunk to the middle platform, from which passengers were to enter the train bound north; that at this station there were two railroad tracks running north and south; there were also two platforms provided, from which passengers were to enter trains, one of them being on the east side of one of the tracks, and one being between the two tracks, the latter being known as the middle platform; that passengers for trains running on the east track entered the train from the platform east of the track, and passengers for trains running on the west track, entered said train from the platform between the two tracks, or the middle platform; that at the south end of the middle platform defendant's road crossed Marceau street in said city; that south of this street, about four hundred yards distant, there was a railroad bridge across the river Des Peres, and from this bridge to the station the road was up-grade. The evidence also tended to show that a person on the platform where plaintiff was struck could see the approach of a train from the south till it passed through this...