81 Mo. 434 (Mo. 1884), Scoville v. Hannibal & St. J.R. Co.

• Citation: 81 Mo. 434
• Opinion Judge: NORTON, J.
• Party Name: SCOVILLE v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant
• Attorney: Geo. W. Easley for appellant. James W. Boyd for respondent.
• Court: Missouri Supreme Court

Page 434

81 Mo. 434 (Mo. 1884)

SCOVILLE

v.

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant

Supreme Court of Missouri.

April Term, 1884

Appeal from Livingston Circuit Court. --HON. J. M. DAVIS, Judge.

REVERSED.

Geo. W. Easley for appellant.

The evidence offered on behalf of the plaintiff, being undisputed that the approach of the engine and car could have been known by the deceased in time to have enabled him to step aside and avert the injury, the demurrer to the evidence should have been sustained. Zimmerman v. Railroad Co., 71 Mo. 476; Henze v. Railroad Co., 71 Mo. 636; Railroad Co. v. Elliott, 28 Ohio St. 340; 14 Am. R'y Rep. 123; Allyn v. Railroad Co., 105 Mass. 77; Railroad Co. v. Hart, 87 Ill. 529; 19 Am. R'y Rep. 249; Harlan v. Railway Co., 65 Mo. 22; 64 Mo. 480; Railroad Co. v. Huston, 95 U.S. 697; Stillson v. Railroad Co., 67 Mo. 676; Fletcher v. Railroad Co., 64 Mo. 484; Field on Damages, p. 164, § 173; Blaker v. Railroad Co., 18 Am. L. R. (N. S.) 562; Salter v. Railroad Co., 75 N.Y. 273; Week's Dam. Absq. Inj., p. 244, § 121; 1 Addison on Torts, (Wood's Ed.) p. 580, note 1; Pierce's Am. R. R. Law, 273; Langan v. Railroad Co., 5 Mo.App. 311; Shearman & Redfield on Neg., §§ 488, 488 a; Railroad Co. v. Buckner, 28 Ill. 299; O'Donnell v. Railway Co., 8 Cent. L. J. 414; Purl v. Railroad Co., 72 Mo. 168; Powell v. Railroad Co., 76 Mo. 80; Lenix v. Railroad Co., 76 Mo. 86; Turner v. Railroad Co., 74 Mo. 602. The second and fifth instructions given on behalf of the plaintiff, are clearly wrong and lack the modification required by the following cases, that the negligence to create liability on the part of defendant, must occur after becoming aware of the danger of the deceased. Karle v. Railroad Co., 55 Mo. 476; Isabell v. Railroad Co., 60 Mo. 475; Maher v. Railroad Co., 64 Mo. 267; Harlan v. Railroad Co., 64 Mo. 480; s. c., 65 Mo. 22; Nelson v. Railroad Co., 68 Mo. 593; Cagney v. Railroad Co., 69 Mo. 416; Swigert v. Rail road Co., 75 Mo. 475; Strauss v. Railroad Co., 75 Mo. 185; Yarnell v. Railroad Co., 75 Mo. 576. For the reasons assigned in these cases the defendant's third instruction should have been given, because it was not negligence not to see him there. Hallihan v. Railroad Co., 71 Mo. 113. The third and eighth instructions given on behalf of the plaintiff both predicate the plaintiff's right to recover, on the failure to ring the bell or sound the whistle, and this without requiring the jury to pass on the question of whether the deceased was on the crossing or not. This was error. Zimmerman v. Railroad Co., 71 Mo. 476; Bell v. Railroad Co., 71 Mo. 58. And ignores the fact alleged in plaintiff's petition, that deceased had voluntarily taken upon himself the duties of a servant, which relieved the defendant of the duty of sounding the whistle or ringing the bell. Rohback v. Railroad Co., 43 Mo. 187. Not only were these instructions bad, but there was further error in refusing the fifth asked by defendant. The defendant's sixth instruction should have been given. It gave the jury some practical rule for determining whether the deceased directly contributed to his injury or not. Schaabs v. Woodburn Wheel Co., 56 Mo. 173; Powell v. Railroad Co., 76 Mo. 80; 1 Addison on Torts, (Wood's Ed.) p. 609, § 567; Tuff v. Warman, 5 C. B. (N. S.) 573. The ninth instruction asked by the defendant should have been given. Saunders on Neg., 143; Degg v. Railroad Co., 1 Hurlst & Nor. 773; 40 Eng. L. and E. Rep. 376; Osborne v. Railroad Co., 68 Me. 49; 28 Am. Reps. 16; 19 Am. R'y Rep. 7; Potter v. Faulkner, 1 Best & Smith 800; Woods M. and S., p. 907, § 455; Schouler's Dom. Relations, 644. So rigid is this rule, that the employer has been held liable for the negligence of such volunteer servant. Althorf v. Wolfe, 22 N.Y. 355. And that such volunteer was a minor works no change in the rule. King v. Railroad Co., 9 Cush. 112; Flower v. Railroad Co., 69 Pa.St. 210; Sherman v. Railroad Co., 72 Mo. 62.

James W. Boyd for respondent.

The demurrer to the evidence was properly overruled. Deceased was killed by the carelessness and negligence of defendant's servants. They exercised no care or caution. The engineer, who knew where he had started to, having no need of further signals, was at the time looking backwards, and excused this on the ground of looking for further signals. See Kennayde v. Railroad Co., 45 Mo. 255; 43 Mo. 255; 50 Mo. 461; 52 Mo. 434; 60 Mo. 323, 475. When facts showing negligence admit of different constructions or inferences, the jury is the proper tribunal to pass thereon. 56 Mo. 351; 61 Mo. 588, and 37 Mo. 537. The instructions given for plaintiff were proper. Brown v. Railroad Co., 50 Mo. 461; Walsh v. Miss. Transfer Co., 52 Mo. 434; Whalen v. Railroad Co., 60 Mo. 323; Isabel v. Railroad Co., 60 Mo. 475; Hicks v. Railroad Co., 64 Mo. 430. As to plaintiff's third instruction,...