Kelly v. Union Railway & Transit Co.

Citation8 S.W. 420,95 Mo. 279
PartiesKelly v. Union Railway & Transit Company, Appellant
Decision Date06 April 1888
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

S. M Breckenridge and M. F. Watts for appellant.

(1) The court erred in refusing to instruct the jury as requested by defendant at the close of plaintiff's case, as well as at the close of the defendant's case, that plaintiff could not recover. Lenix v. Railroad, 76 Mo. 86; Drain v. Railroad, 10 Mo.App. 531; O'Donnel v Railroad, 7 Mo.App. 190; Henze v. Railroad, 71 Mo. 636; Fletcher v. Railroad, 64 Mo. 434; Harlan v. Railroad, 65 Mo. 22; Zimmerman v. Railroad, 71 Mo. 476; Hallihan v. Railroad, 71 Mo. 113; Rains v. Railroad, 71 Mo. 164; Nelson v. Railroad, 68 Mo. 593; Nolan v. Shickle, 69 Mo. 336; Maher v. Railroad, 64 Mo. 267; Moody v. Railroad, 68 Mo. 470-4; 2 Thomp. on Neg. 1157; Maloy v. Railroad, 84 Mo. 270; Rine v. Railroad, 88 Mo. 392. (2) The court erred in refusing to instruct the jury, as requested by defendant at close of defendant's evidence, that on all the evidence plaintiff could not recover. Thompson's Carriers of Passengers, 75, and cases there cited. (3) The section of the city ordinance was erroneously admitted in evidence. Bauer v. Railroad, 69 Mo. 219. (4) The second instruction asked by defendant should have been given. (5) The court erred in refusing the thirteenth instruction asked by defendant. (6) The court erred in giving the second instruction given for plaintiff.

A. R. Taylor for respondent.

(1) Although the plaintiff may have been negligent as claimed, yet if the defendant's agents, by the observance of the ordinance, could have averted the injury, the defendant is still liable. Harlan v. Railroad, 65 Mo. 26; Kelly v. Railroad, 75 Mo. 140; Scoville v. Railroad, 81 Mo. 440; Welsh v. Railroad, 81 Mo. 472. (2) The respondent was not a trespasser upon defendant's track, because the Missouri Pacific Railway had a right to connect with, intersect, or cross defendant's track, and respondent as its servant could not be held to be a trespasser whilst thus serving his master. Const. of Mo., 1875, art. 12, sec. 13. (3) Respondent being lawfully upon defendant's track, engaged in making a connection therewith for his master, the Missouri Pacific, was entitled to the active vigilance of the servants of the defendant to prevent injury to him. "Such persons may become engrossed in their labor to such an extent that they may be oblivious of the approach of trains, relying as they may upon the performance of the duty imposed by law upon the railroad company with reference to them." 1 Thomp. on Neg., p. 461, sec. 3; Goodfellow v. Railroad, 106 Mass. 462; Stinson v. Railroad, 32 N.Y. 337; Railroad v. Trainer, 33 Md. 542.

OPINION

Norton, C. J.

This cause was tried in the circuit court of the city of St. Louis, and defendant took an appeal from a judgment rendered in plaintiff's favor for two thousand dollars to the St. Louis court of appeals, which court rendered a majority opinion affirming the judgment. Judge Rombauer rendered a dissenting opinion, in which he took the grounds that the majority opinion was in conflict with a decision of this court, whereupon the cause was certified to this court, as required by section 6, of the constitutional amendment adopted in 1884.

Defendant interposed an instruction in the nature of a demurrer to the evidence, which was overruled, and this action of the court is assigned for error. As stated by the court of appeals, the evidence of plaintiff shows the following state of facts: "That plaintiff, who was an experienced track-repairer, was engaged about noon of a cold winter day in screwing, by means of bolts, a fishplate to a T rail, for the purpose of making a connection between a track of the Missouri Pacific Railway Company and that of the defendant company; that, for the purpose of prosecuting the work more conveniently, he took a position astride of a rail of the defendant's track, with his back toward the northeast; that the place where he was at work was between the Union Depot, at Twelfth street, in St. Louis, and the mouth of the tunnel at Eighth street; that there were many tracks in the vicinity, and trains were constantly being made up in that vicinity, and cars and locomotives were frequently passing over the track when he was at work; that, while he was in a stooping position, a train of defendant, containing five or six cars, came backing along out of the mouth of the tunnel from the northeast at a lawful rate of speed, about four miles an hour, but without observing the precaution of ringing the bell of the locomotive, and of having a man posted on the car farthest from the locomotive to give danger signals, as required by an ordinance of the city; that the plaintiff, absorbed in his work, and relying upon hearing the bell or a danger signal from the man so stationed, did not hear the train as it thus approached him from behind until the foremost car had almost reached him; that he turned and looked up, but not in time to avoid being struck by the car on the head and knocked over in such a position that one of his feet was run over by one or more wheels of the car and crushed so that his leg had to be amputated below the knee."

The evidence shows that plaintiff was not a trespasser on defendant's track, but was rightfully there in the performance of a duty assigned to him as track-repairer. The evidence as to whether the bell was rung or a man was stationed on the car farthest from the engine to give danger signals was conflicting, but it was for the jury, and is not for us, to reconcile this conflict, or to say whether the evidence preponderated one way or the other. This is especially so in passing upon the demurrer to the evidence, the rule being in such cases that it admits the truth of the facts in evidence and all reasonable inferences in plaintiff's favor which can be drawn therefrom. Giving effect to this rule, the action of the trial court in refusing to take the case from the jury was proper.

It is next insisted that the court erred in the matter of instructions. The court gave five of its own motion, one at the instance of defendant, and refused fourteen. The following showed the theory upon which the case was tried, the correctness of which is challenged by counsel for defendant:

"1. The jury are instructed that at the time and immediately before plaintiff was injured (as shown by the evidence), he was negligent in failing to exercise ordinary care to observe the approach of the train that struck him; consequently the jury should return a verdict in favor of the defendant unless they find the facts to be as set forth in the instruction number two or instruction number three."

"2. It will be the duty of the jury to return a verdict in favor of the plaintiff, if they find from the evidence that no man was stationed on defendant's said train on the car farthest from the engine; that, in consequence of such omission plaintiff was not warned of the approach of said train in season to escape injury; and that notwithstanding the said negligence of plaintiff in the premises said injury would not have occurred if such a man had been...

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