Guenther v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 21 May 1888
• Citation: 8 S.W. 371,95 Mo. 286
• Parties: GUENTHER v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

8 S.W. 371

95 Mo. 286

GUENTHER v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

May 21, 1888.

1. RAILROAD COMPANIES — INJURIES TO PERSONS ON TRACK — INSTRUCTIONS.

In an action against a railroad company for killing plaintiff's husband, it appeared that deceased was run over in the day-time while on defendant's track, within the limits of a city; that, at the place the accident occurred, there were two tracks, between which was a road-bed, and by the side of the track on which deceased was killed a dirt road used for a number of years by workmen employed near by; and that, owing to the road-bed being better and more level than the dirt road, the workmen and other pedestrians used the road-bed instead; that there was no evidence that deceased was killed at a crossing of any traveled road or street, or that any public crossing was within such a distance as to require the bell on the engine to be rung as required by statute; and that there was conflicting evidence as to whether either the bell or whistle was sounded. There was evidence of contributory negligence on the part of plaintiff. Held, that an instruction that if the jury believe the place where the injury occurred to deceased was a traveled public road or street, and had been used as a public road for 20 years prior thereto, then it was the duty of the servants of defendant to keep ringing the engine bell while the train was passing over said road or street, and for a distance of 80 rods before reaching the place of accident; and that, if it appeared that no bell was rung while passing said road or street at the time of and immediately before the accident, the jury might infer negligence on the part of the employes of defendant; and that deceased's death directly

resulted from omission to sound the bell, — they should return a verdict for plaintiff, — was erroneous, as it completely ignored the fact of the contributory negligence of plaintiff.

2. SAME — CONTRIBUTORY NEGLIGENCE.

In an action against a railroad company for killing plaintiff's husband, it appeared that deceased was run over while on defendant's track; that, at the place where the accident occurred, the train could have been clearly seen approaching; that deceased, without reasonable care, walked upon the track in front of an approaching train, and was struck down and killed; and there was conflicting evidence as to any warning having been given of the approaching train. Held, that it was error to refuse to instruct the jury that if deceased, just before the accident, stepped upon the track in front of an approaching train, which he could have seen or heard had he looked or listened, and that he went on the track without looking or listening, and was struck by the train, then the verdict should be for the defendant, unless they found from the evidence that the train could have been stopped by those in charge, by the exercise of ordinary care, in time to prevent the injury, after they became aware, or might have become aware by the exercise of ordinary care, of the peril of deceased.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Elizabeth Guenther brought an action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for negligently killing her husband. Verdict for plaintiff. Defendant appeals.

Bennett Pike, for appellant. Leo Rassieur and Dexter Tiffany, for respondent.

BRACE, J.

This is an action in which plaintiff seeks to recover damages for the alleged negligence of defendant in running its locomotive and cars over her husband, Jacob Guenther, and killing him. The answer of the defendant contained a general denial and a plea of contributory negligence. The reply of plaintiff to the answer was a general denial. At the close of plaintiff's evidence in chief, a demurrer to the evidence was interposed, which being overruled the defendant then introduced its evidence, and the case was submitted to the jury under the instructions of the court, a verdict rendered for the plaintiff, and from the judgment entered thereon the defendant, after an unsuccessful effort for a new trial, appeals, and assigns for error the refusal of the court to sustain the demurrer to the evidence, the admission of improper evidence for the plaintiff, the giving of improper instructions for the plaintiff, and refusing proper instructions for the defendant.

The defendant is not in position to urge the overruling of the demurrer to the evidence as reversible error, having waived the same by putting in its own evidence; and the case will have to be examined and determined upon the whole evidence in the case. Bowen v. Railway Co., ante, 230, (decided at this term.)

It appears from the evidence that about 7 o'clock on the morning of the 13th of August, 1884, the deceased, while walking southwardly on the defendant's track, at a point within the limits of the city of St. Louis about three miles south of the Union depot, was struck by the Carondelet accommodation train running south; that he was thrown from the track, and died the same day; that the train was about on time, — perhaps a few minutes late, — and running at the rate of from 15 to 20 miles an hour; that there is a plain and unobstructed view of the track for 500 yards or more north of the point where the collision took place. The evidence of the plaintiff tended to prove that, on the train, while moving over this distance, no bell was rung, and no whistle sounded, till at the moment when Guenther was struck. The evidence of the defendant tended to show that the bell was being continually rung on the engine during the whole time the train was moving to the moment when deceased was struck. At the point of collision the defendant has two tracks on its road-bed; the eastern track used by trains going north; the western track, by trains going south. The deceased was struck on the western track. Between these two tracks there is a space from five to eight feet. The road-bed is located along the western bank of the Mississippi river, and in the bluff west of the road-bed, and adjacent to it, a number of quarries have for a number of years been operated. Between the road-bed and these quarries a dirt road, on the average about four feet lower than the railroad bed, has for a number of years been used by the quarry teams; and, for a like period, the workmen, in passing on foot to and from their work, as well as other pedestrians, used the road-bed, — the walk there being level, and better than the dirt road below; and about 7 o'clock in the morning it was customary to find quite a number of people passing along the road-bed at this point. Defendant's road-bed was constructed on a strip of land conveyed to it for a right of way in the year 1856, and originally sustained but one track. In 1859 the owners of the land over which the defendant's easement was granted, laid off that part of the tract lying west of the road-bed into lots and blocks divided by streets, and located on the plat a street 40 feet wide, running parallel with the west side of the railroad track, and filed and recorded a deed of dedication thereof to public uses. This street was afterwards recognized by the city on its plats, but was never improved or definitely located on the ground, so far as the evidence shows; nor was it built upon as a street, or used as such, except, as hereinbefore stated, in connection with the dirt road mentioned and the defendant's road-bed. This street, thus laid off, was the terminus of the streets running east and west on the plat; none of them crossing it. About the year 1873 the defendant laid the second track on its road-bed, and there was evidence tending to show that, in doing so, the western track was pushed west of its original location in some places along where the accident occurred to make room for the eastern track; and it is contended for the plaintiff that the collision took place within the limits of this platted street; and by the defendant, within the limits of its right of way. The evidence on this subject is very vague and unsatisfactory; nor, in the view we take of this case, do we think it very important to determine which is right. The negligence, if any, of either plaintiff or defendant, is to be measured by the condition of things at the place where the accident took place, as they were known to exist by each of them at the time the acts of each are complained of as being negligent, and those acts...