Montgomery v. Missouri Pacific Ry. Co.

• Decision Date: 10 May 1904
• Citation: 79 S.W. 930,181 Mo. 477
• Parties: BERTHA MONTGOMERY, by next friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 930

181 Mo. 477

BERTHA MONTGOMERY, by next friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Cass Circuit Court. -- Hon. W. W. Graves, Special Judge.

Affirmed.

R. T Railey for appellant.

(1) The court below committed reversible error in refusing defendant's instruction "C." The law is now thoroughly settled in this State to the effect that said instruction is eminently proper and should be given. Feary v. Railroad, 162 Mo. 105; Pratt v Conway, 148 Mo. 299; Davies v. Railroad, 159 Mo. 6; Payne v. Railroad, 30 S.W. 150; State v Bryant, 102 Mo. 32; State v. Turlington, 102 Mo. 663; State v. Brooks, 99 Mo. 137; Bogie v. Nolan, 96 Mo. 91; State v. Peak, 85 Mo. 192; State v. Talbott, 73 Mo. 350; State v. Curtis, 70 Mo. 596; Robbins v. Butler, 24 Ill. 387; Erwin v. Railroad, 68 S.W. 90. (2) As to plaintiff's instruction number 2, given by the court: The rule in this State is now well settled that pleadings shall be strictly construed against the pleader. Snyder v. Free, 114 Mo. 367; Overton v. Overton, 131 Mo. 566; Young v. Schofield, 132 Mo. 661; Boles v. Bennington, 136 Mo. 528; Leete v. Bank, 141 Mo. 581; Sidway v. M. L. & L. S. Co., 163 Mo. 372; Mallinckrodt C. Wks. v. Nemnich, 69 S.W. 358. It is equally well settled in this State that where the petition charges general negligence, which is followed by one or more specific charges of negligence, or where it contains -- as in this case -- specific charges of negligence, the plaintiff in her proof and under her instructions, should be confined to such specific charges alone. Waldheir v. Railroad, 71 Mo. 518; Hite v. Railroad, 130 Mo. 136; McManamee v. Railroad, 135 Mo. 447; Huston v. Tyler, 140 Mo. 263; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railroad, 148 Mo. 74; Bartley v. Railroad, 148 Mo. 139; Feary v. Railroad, 162 Mo. 96; Pryor v. Railroad, 85 Mo.App. 378. In the case at bar the following specific charges of negligence are attempted to be pleaded: (a) That defendant backed its train over said crossing, without giving any warning or signals. (b) That it had no light or brakeman on the rear of the car to warn plaintiff of its approach. (c) That defendant had been in the habit of keeping a flagman at said crossing to give warning, and that no flagman was present at time of accident. The three specific charges, supra, constitute the sole grounds of negligence pleaded in petition. The court below, therefore, erred in giving of its own motion instruction 2. It is perfectly manifest that this instruction did not confine the jury to the specific charges of negligence pleaded in petition, but gave the jury a roving commission to draw upon their own imagination, to convict defendant upon supposed negligence not pleaded and outside the case. Weber v. Railroad, 58 N.Y. 460. The jury may have considered defendant negligent in failing to stop its train after plaintiff came upon or near the track, when the signals were given. The jury may have concluded that it was not a proper thing for defendant to switch its train across a thoroughfare in a city like Pleasant Hill. The jury may have thought that defendant had been guilty of other acts of negligence, as in the Gurley and Lamb cases, which occurred on the same crossing, and that by reason thereof defendant should have had an overhead crossing. The jury may also have concluded that, as a matter of safety, defendant should have kept and maintained gates, in connection with its flagman, which would have precluded plaintiff from coming on the track in front of said car. The jury may have concluded that defendant, at the time of accident, was guilty of negligence in moving its train at too great a rate of speed, although no ordinance was pleaded or offered in evidence upon this subject. The jury may have concluded that defendant should have kept and maintained a street lamp and kept it properly lighted where Wyoming street crosses the tracks. Various other things may have been considered by the jury, under this omnibus instruction, without any reference to the issues presented by the petition. We, therefore, in great confidence insist that this instruction is so clearly erroneous and prejudicial that the case, without hesitation, should be reversed on account of the giving of same. (3) Defendant was not bound to have a watchman at Pleasant Hill. Welsch v. Railroad, 72 Mo. 451; Baker v. Railroad, 147 Mo. 161; Beisiegel v. Railroad, 40 N.Y. 25; Cumming, etc. v. Railroad, 104 N.Y. 671; Railroad v. Herman, 39 Ill.App. 287; Railroad v. Jacobs, 63 Ill. 178; Railroad v. Matthews, 36 N. J. L. 534; State v. Railroad, 47 Md. 76; Sellars v. Railroad, 94 N.C. 654. As the law did not require, under the circumstances of this case, a flagman to be stationed at Pleasant Hill, the mere fact that defendant had Lock there for its own convenience did not confer a right of action upon plaintiff on account of his absence, if he was absent at time of accident. Barney v. Railroad, 126 Mo. 392; State ex rel. v. O'Neill, 151 Mo. 89; May v. Crawford, 150 Mo. 527; Culbertson v. Railroad, 140 Mo. 35; Reichenbach v. Ellerbe, 115 Mo. 595; Jackson v. Hardin, 83 Mo. 175; Powell v. Railroad, 76 Mo. 80; Dwight v. Ins. Co., 103 N.Y. 359.

H. A. Jones and A. A. Whitsitt for respondent.

(1) (a) It is the duty of a flagman at a crossing at a public street which is much used by the public to know of the approach of trains, and give timely warning to all persons attempting to cross the railroad track, and the public have a right to rely upon a reasonable performance of that duty. Railroad v. Blane, 70 Ill.App. 518; Railroad v. Hutchinson, 120 Ill. 587. (b) Though a railroad is under no original obligation to station a flagman at a particular crossing, yet, if it has done so for many years, travelers may presume, in his absence, that the way is clear and safe. Martin v. Railroad, 42 A. 442; Railroad v. Gunderson, 174 Ill. 495. (c) The absence of the flagman is an assurance by defendant that the way is clear. The extent to which he may rely upon such assurance and invitation is a question of fact for the jury, unless it conclusively appears that he relied exclusively thereon, because the court can not say that a prudent person would not be influenced to some material extent by them, and so regulate his conduct. To assume otherwise would be against all human experience. Palmer v. Railroad, 112 N.Y. 234; Glansbing v. Sharp, 96 N.Y. 676; Warren v. Railroad, 163 Mass. 484 (40 N.E. 895); Hudson v. Railroad, 67 Conn. 266; Railroad v. Stegemeier, 118 Ind. 305 (20 N.E. 843); Evans v. Railroad, 88 Mich. 444 (50 N.W. 387); Beach on Con. Neg., sec. 190; 2 Shearman & Redfield on Neg., sec. 466; 3 Elliott on R. R., sec. 1167. (d) The absence of a flagman from his post may excuse one cognizant of his duty from gross negligence, in failing to stop before attempting to cross and look both ways. Judson v. Railroad, 53 N.E. 518; Duffy v. Railroad, 32 Wis. 269; Bunting v. Railroad, 14 N.W. 351; Railroad v. Rice, 10 Kan. 426; Continental Imp. Co. v. Stead, 95 U.S. 161 (19 L.Ed. 403). (e) The question in this case is whether or not respondent exercised reasonable care under the circumstances -- that care and circumspection which an ordinarily prudent person would have exercised under the same circumstances. Baker v. Railroad, 147 Mo. 140; Stepp v. Railroad, 85 Mo. 235; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Railroad v. Barnett, 59 Pa. 264; Jennings v. Railroad, 112 Mo. 276; Ping v. Railroad, 71 Mo.App. 577; Kelley v. Railroad, 88 Mo. 534; Donahue v. Railroad, 91 Mo. 357. (2). A railroad company is required to take extraordinary care to prevent accident when it undertakes to back a train of cars or engine at a highway crossing. Shaw v. Railroad, 8 Gray 45; Bradley v. Railroad, 2 Cush. 539; Linfield v. Railroad, 10 Cush. 564; Bailey v. Railroad, 107 Mass. 496; McGovern v. Railroad, 67 N.Y. 417; Railroad v. Gorvey, 58 Ill. 85; Kennedy v. Railroad, 36 Mo. 535; Railroad v. Rice, 10 Kan. 426; Bohon v. Railroad, 15 Am. & Eng. R. R. Cas. 374; Binard v. Railroad, 164 Mo. 270. It is negligence to switch cars over a crossing in a populous city on which a brakeman cannot see the track. Settle v. Railroad, 15 Am. & Eng. R. R. Cases (N. S.) 129. (3) It is gross negligence where a railroad company backs its train across the main street of a village without a brakeman at the rear end as a lookout. Cooper v. Railroad, 66 Mich. 261; Robison v. Railroad, 48 Cal. 409; Clampit v. Railroad, 49 Am. & Eng. R. R. Cases 468 (84 Iowa 71). (4) So at night both a light and a lookout should be kept on the rear of the train when backing upon a crossing. Cherry v. Railroad, 16 Hun 415. (5) There is nothing in the testimony of plaintiff to authorize giving the refused instruction "C." This court in passing upon this question has held that such instructions should not be given unless facts material to the issue have been admitted. Dohlstrom v. Railroad, 108 Mo. 540; Ephland v. Railroad, 137 Mo. 191; McPeak v. Railroad, 128 Mo. 648. (6) If the instructions, taken as a whole, present the issues fairly and are not calculated to mislead the jury, that is all that is necessary. Muehlhauser v. Railroad, 91 Mo. 332; Henry v. Railroad, 113 Mo. 525; Swan v. Lullman, 12 Mo.App. 583; Ross v. Clark, 14 Mo.App. 594; Sappington v. Railroad, 14 Mo.App. 86; Yocum v. Trenton, 20 Mo.App. 489; Schooler v. Schooler, 18 Mo.App. 69; Reilly v. Railroad, 94 Mo. 600; Harrington v. Sedalia, 98 Mo. 583; Wetzell v. Wagner, 41 Mo.App. 509; Ridenhour v. Railroad, 102 Mo. 270; O'Connell v. Railroad, 106 Mo. 482.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

From a judgment in favor of the plaintiff in the circuit court of Cass county, the defendant ...