79 S.W. 445 (Mo. 1903), Riska v. Union Depot R. Co.

Citation:79 S.W. 445, 180 Mo. 168
Opinion Judge:BURGESS, J.
Attorney:Boyle, Priest & Lehmann, Lon O. Hocker, Geo. W. Easley and E. S. Robert for appellant. A. R. Taylor for respondent. Boyle, Priest & Lehmann and Geo. W. Easley for appellant on motion for rehearing.
Case Date:December 23, 1903
Court:Supreme Court of Missouri

Page 445

79 S.W. 445 (Mo. 1903)

180 Mo. 168




Supreme Court of Missouri, Second Division

December 23, 1903

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein, Judge.


Boyle, Priest & Lehmann, Lon O. Hocker, Geo. W. Easley and E. S. Robert for appellant.

(1) The demurrer to the evidence should have been sustained. The evidence for plaintiff disclosed that the car could have been seen by the deceased at least a block away, if he had looked. It could have been heard if he had listened. He neither looked nor listened, but on a dark, rainy night, with an umbrella over his head, walked upon the track, only six feet in front of a moving car, without looking to see whether the car was approaching or not, or giving any heed to his surroundings. This was such contributory negligence as precludes a recovery. Hogan v. Railroad, 150 Mo. 55; Schmitt v. Railroad, 149 Mo. 287; Vogg v. Railroad, 138 Mo. 172; McMannee v. Railroad, 135 Mo. 440; Huggart v. Railroad, 134 Mo. 673; Lane v. Railroad, 132 Mo. 27; Baker v. Railroad, 122 Mo. 543; Bunyan v. Railroad, 127 Mo. 19; Weller v. Railroad, 120 Mo. 648; Maxey v. Railroad, 113 Mo. 10; Boyd v. Railroad, 105 Mo. 381; Hudson v. Railroad, 101 Mo. 30; Moore v. Railroad, 126 Mo. 273; Zimmerman v. Railroad, 71 Mo. 486; Maher v. Railroad, 64 Mo. 267; Fletcher v. Railroad, 64 Mo. 484; Harlan v. Railroad, 65 Mo. 22; Moody v. Railroad, 68 Mo. 470; Bell v. Railroad, 72 Mo. 50; Purl v. Railroad, 72 Mo. 168; Adams v. Railroad, 74 Mo. 553; Kelly v. Railroad, 75 Mo. 140. (2) The entire series of instructions given by the court upon its own motion, as well as upon the motion of the plaintiff, has one common vice. Not one of them requires the jury to find that any one or more of the negligent acts charged caused the injury and death for which the action was brought. Stanley v. Railroad, 114 Mo. 624; Murphy v. Railroad, 54 S.W. 445. Instruction 2 given by the court upon its own motion is erroneous in the following particulars: a. It presents an issue not made by the pleadings -- that of negligence after those in charge of the train discovered, or should have discovered, the danger of deceased. There was no evidence that the car could have been stopped after its operator knew, or ought to have known, that the deceased was going on the track. Bunyan v. Railroad, 127 Mo. 19; Waldhier v. Railroad, 71 Mo. 514; Holwerson v. Railroad, 57 S.W. 770. b. The instruction is based on the degree of care required by the ordinances read in evidence. No proof was offered that the defendant was in any manner bound by such ordinances, and they can not rule the case. Fath v. Railroad, 105 Mo. 537; Moran v. Pullman Co., 134 Mo. 650; Sanders v. Railroad, 147 Mo. 411; Murphy v. Railroad, 54 S.W. 442; Holwerson v. Railroad, 57 S.W. 770. The third and fifth instructions given by the court on its own motion are bad for the same reasons. c. It ignores the fact of the simultaneous and concurring negligence of deceased with the alleged negligence of the defendant. The rule of this instruction can have no application to a case where the negligence of each of the parties continues up to and combines as the efficient cause of the injury. Zimmerman v. Railroad, 71 Mo. 484; Nelson v. Railroad, 68 Mo. 597; Price v. Railroad, 72 Mo. 414; Murphy v. Dean, 101 Mass. 466; Murphy v. Railroad, 54 S.W. 442; Watson v. Railroad, 133 Mo. 250; Holwerson v. Railroad, 57 S.W. 770. d. Even had the pleadings and proof justified this instruction, it is erroneous for want of the important qualification that the deceased could not, after he became or ought to have become, aware of defendant's negligence, by care on his part have avoided the injury. Beach on Contributory Negligence, sec. 56; Cooley on Torts (2 Ed.), 813; Bailey's Master's Liability, 446; 7 Am. and Eng. Ency. of Law (2 Ed.), 386; Watson v. Railroad, 133 Mo. 250; Holwerson v. Railroad, 57 S.W. 770.

A. R. Taylor for respondent.

(1) The deceased being lawfully on the street, in approaching and passing over the track, had the right to rely upon the defendant's servants obeying the law as to the speed of the car, and to regulate his action and movement accordingly. That is to say, he had a right to attempt to cross the track if, when he saw the car, it was such a distance from the crossing that he would be safe in crossing if the car was not running exceeding the lawful rate of speed. And under such a state of facts he was not negligent in thus undertaking to cross the track. The evidence tended most strongly to prove that the car was, in fact, running from twenty to thirty miles an hour, and that deceased's reliance upon the law being obeyed by the railroad caused his death. The lawful rate of speed was ten miles an hour. The deceased, seeing the car such a distance away as not to imperil his passage, goes on across in the assurance that the car would not come faster than the lawful rate, is caught on the track and killed by the excessive speed. All the evidence tends to prove that this is the true solution of the killing. And if so, there was no contributory negligence of the deceased, and there was inexcusable negligence upon the part of the railroad. The decisions of this court have about settled this case upon this proposition. There is no longer doubt upon this point if there was ever room for doubt. This court in a very recent case states the law as follows: "Deceased had the right to presume that the defendant would obey the ordinance of the city regulating the speed of railroad trains and requiring to be placed on every moving train after sunset one large lamp, headlight or lantern conspicuously placed in front of the train facing the direction in which the train was moving, and requiring the bell to be rung on the engine on all such trains eighty rods from the crossing, and to be kept ringing until the train (engine) passed the crossing." Weller v. Railroad, 164 Mo. 199; Petty v. Railroad, 88 Mo. 306; Crumpley v. Railroad, 111 Mo. 152; Jennings v. Railroad, 112 Mo. 490; Sullivan v. Railroad, 117 Mo. 214. This declaration of the law of the relation of the railroad to the public is axiomatic. The law was made to be obeyed. The railroad was in duty bound to obey the law. Every citizen in his relations with the railroad has a right to expect the railroad will obey the law, and to regulate his action upon that assurance until he has reason to know that the railroad is not obeying the law, and the law will not condemn his action if he fails to anticipate the unlawful act of the railroad. The same principle is declared in the recent case of Hutchinson v. Railroad, 161 Mo. 257. (2) The law presumes that the deceased was in the exercise of ordinary care as he approached and went upon the track; that he looked and listened, and seeing the car a safe distance from the crossing, and relying on obedience by the railroad to the ordinance that the car would not come faster than ten miles per hour, proceeded in this assurance to cross the track. The deceased was entirely justified in such action. Buesching v. Gaslight Co., 73 Mo. 219; Petty v. Railroad, 88 Mo. 306; Crumpley v. Railroad, 111 Mo. 152; Schlereth v. Railroad, 115 Mo. 87; Meadow v. Ins. Co., 129 Mo. 76; Bluedorn v. Railroad, 108 Mo. 439. There was no evidence that deceased did not see the car at a distance such as to enable him to cross in safety if the car was running at the lawful rate. This court states the law in these words: "And when these presumptions, together with the presumption that the deceased was at the time of the accident in the exercise of due care, are indulged, the plaintiff was entitled to recover, unless it conclusively appeared from the evidence adduced by plaintiff either by the direct or cross-examination of her own witnesses, that her husband was guilty of negligence contributing to his own injury (Stone v. Hunt, 94 Mo. 475; Buesching v. Gas Co., supra; Warren v. St. Louis Merchants Exchange, 52 Mo.App. 157), and in order to overcome the presumption, and to defeat plaintiff's action, it devolved upon the defendant to show, by the weight of the evidence, a failure on the part of the deceased to exercise ordinary care to avoid the injury, and that his failure to exercise such care was its proximate cause, and so direct and immediate that but for the want of such ordinary care the injury would not have occurred." Weller v. Railroad, 164 Mo. 199. (3) The third point in appellant's brief is untenable if the ordinance requiring a vigilant watch and the stopping of the car within the shortest time and space possible was admissible. The motorman testified that he could see "the whole width of the street" before him as he ran up to point of collision. That he did not see deceased until he was between the two tracks. His admission shows that he could have seen deceased when he left the sidewalk. He stopped his car within about thirty-five feet. This was the best kind of evidence that he could stop his car within that space. He did do it. Then, seeing the deceased walking from the sidewalk (if he looked, as the ordinance required him to look), why didn't he stop -- or slow up -- or do something to save life? The evidence was ample to support this instruction. As to the admissibility of the ordinances pleaded, as we understand the recent decisions of the Supreme Court of Missouri, the cases cited and relied on by appellant do not state the law upon the question. The case of Jackson v. Railroad, 157 Mo. 636, distinctly overthrew the doctrine of the Fath case, and those following it as authority, and returned to the doctrine universally held throughout the United States, that a violation of an ordinance of a city, designed to protect life and limb, is negligence, and admissible in evidence to support an action by the injured party against the wrongdoer...

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