Montgomery v. Missouri Pac. Ry. Co.

• Decision Date: 01 March 1904
• Citation: 79 S.W. 938,181 Mo. 508
• Parties: MONTGOMERY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

79 S.W. 938

181 Mo. 508

MONTGOMERY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 1, 1904.

RAILROADS — ACCIDENT AT CROSSING — INSTRUCTIONS — EVIDENCE — ADMISSIONS.

1. In an action against a railroad company for injuries at a crossing the court charged that it was alleged that defendant backed its train across the crossing without giving any signal, having lights on the train, having any brakemen on the rear car, or flagman at the crossing, and that, if plaintiff recovered, it must be on some of the negligent acts mentioned.

Another instruction authorized a recovery if defendant did not exercise reasonable care. Still other instructions stated that, if a brakeman signaled plaintiff to stop, or if she could have seen the train by exercise of ordinary care, or if she knew of the proximity of the train and failed to stop, she could not recover. Held that, construed together, the instructions were not objectionable as allowing a recovery for any single act of alleged negligence, although it might not have caused the injury and plaintiff might have been guilty of contributory negligence.

2. In an action against a railroad company for injuries at a crossing the court was not required to assume in instructions that plaintiff's knowledge of the crossing, the frequency of trains passing over it, and the fact that the horse attached to the vehicle she was in was gentle, were admissions against her.

Appeal from Circuit Court, Cass County; W. W. Graves, Judge.

Action by Sadie Montgomery against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. T. Railey, for appellant. H. A. Jones and A. A. Whitsitt, for respondent.

GANTT, J.

This is an appeal from the judgment of the circuit court of Bates county. The action is for damages for personal injuries inflicted by the alleged negligence of defendant, its agents and servants, in backing a freight train over a buggy in which plaintiff, her sister, and brother were riding on their return home from church on the night of October 29, 1899. The injury occurred on a public crossing of Wyoming street, in the city of Pleasant Hill, in Cass county, Mo. The facts of the case are in all material respects the same as those which appear in the case of Bertha Montgomery v. Missouri Pacific Railway Company (decided on this day) 79 S. W. 930, and hence reference only need be made to that case for a statement of the facts. The instructions of the court were the same as in the Bertha Montgomery Case, save that in this case the court, of its own motion, gave one numbered 4, in the words following: "The court instructs the jury that the negligence mentioned in instruction 1, in so far as negligence is mentioned therein, on the part of the defendant in this case, refers simply to such negligent acts as the defendant is charged to have been guilty of in this case. And you are further instructed that in this case the defendant is charged with being negligent in the following manner: (1) Defendant is charged with having backed its engine and train of cars across the Wyoming street crossings at the time of the alleged accident without giving any warning or signal before reaching said crossing. (2) The defendant is charged with having negligently backed said train of cars and engine without having any light on said car, or brakeman or other person stationed on said car, or at the end of said car or cars, to warn persons at the crossing of the approach of said car or cars, and that no warning signal or notice of any kind was given of the approach of said car or train of cars as it was being backed across said crossings at Wyoming street. (3) It is charged as an act of negligence that the defendant had been in the habit of keeping a flagman at said Wyoming street crossing for the purpose of apprising persons about to cross said crossing of danger, if any, in so doing, and that upon this occasion the customary flagman was absent from his usual and customary place of duty, and failed to give any signal or warning to plaintiff or those who were there at the time. You are further instructed herein that, if the plaintiff recover at all, it must be upon some of the alleged negligent acts hereinbefore set out, and that the plaintiff cannot recover herein upon any other negligent acts of the defendant, if, from the evidence, you should find that there are or were other negligent acts upon the part of the defendant, at the time"—to which defendant duly saved an exception.

1. The first assignment of error is that instruction No. 1 for plaintiff, taken and read in connection with No. 4 given by the court, is vicious, because it permitted the jury to find for plaintiff if they found defendant was guilty of either one of the specific acts of negligence alleged in the petition, whether it was the proximate cause of plaintiff's injury or not, and authorized a verdict if the train backed over the crossing without any signal or warning given by the train crew, although such act might not have been the proximate cause of plaintiff's injury, and, if given, might not have prevented the injury; and, third, authorized a verdict, although the watchman was at his post with lighted lanterns, and gave the plaintiff warning, if the jury should also believe that the train was backed over the...